Jacobsen v. State

• Decision Date: 09 February 1989
• Docket Number: No. 88-216,88-216
• Citation: 769 P.2d 694,236 Mont. 91,46 St.Rep. 207
• Parties: Rolf A. JACOBSEN, et al., Plaintiffs and Appellants, v. STATE of Montana, Defendant and Respondent.
• Court: Montana Supreme Court

Page 694

769 P.2d 694

236 Mont. 91

Rolf A. JACOBSEN, et al., Plaintiffs and Appellants, v. STATE of Montana, Defendant and Respondent.

No. 88-216.

Supreme Court of Montana.

Submitted on Briefs Dec. 29, 1988.

Decided Feb. 9, 1989.

Daniel W. Hileman, Murray, Kaufman, Vidal & Gordon, P.C., Kalispell, for plaintiffs and appellants.

Dana L. Christensen, Murphy, Robinson, Heckathorn & Phillips, P.C., Kalispell, for defendant and respondent.

McDONOUGH, Justice.

This appeal concerns alleged negligence by the State of Montana in combating a forest fire. Plaintiff Rolf A. Jacobsen, together with several other homeowners and an insurance company that sustained losses as a result of the fire in question (Plaintiffs), appeal from the judgment of the District Court of the Nineteenth Judicial District, Lincoln County, entered upon a jury verdict in favor of the State. We affirm.

Plaintiffs frame three issues for review:

1. Whether the District Court erred by allowing Defendant's Exhibits "L" and "N" into evidence over Plaintiffs' objections.

2. Whether there was substantial credible evidence to support the jury verdict.

3. Whether the District Court's giving of Defendant's Proposed Jury Instructions 18 and 21, and refusal to give Plaintiffs' Offered Instruction No. 6 was in error.

In August of 1984, the Houghton Creek area near Libby was the site of two forest fires relevant to this dispute. The initial fire was discovered on August 15, and burned approximately 87 acres. State fire-fighting personnel had contained and largely extinguished the first fire by August 20, and then began a schedule of daily patrols at the site of the burn. During these patrols, crews extinguished any fires or "smokes" they discovered within "two chains" (132 feet) of the outside perimeter of the burn.

August was a hot and dry month, and on the 27th a "red flag" warning was posted due to windy conditions. In the early afternoon, the Libby-area dispatcher for fire fighters received reports from Houghton Creek residents that the air was becoming smoky and dusty. The dispatcher radioed two crews and directed them to interrupt their regular patrol schedules and proceed directly to the Houghton Creek burn. They were joined by a third, Inter-Unit crew that had been dispatched from Kalispell because of the red flag condition in the Libby area.

The first crew on the scene surveyed the burn area, where the crew boss later testified he observed smoke and winds of approximately 30 m.p.h. When the other crews arrived, the first crew boss told them he felt he could handle the situation and released them to other duties. Upon the departure of the two crews, the first crew boss returned to a vantage point on a ridge near the burn, where he saw fire burning rapidly in his direction. He radioed for help, and the other two crews returned. Members of the other crews testified to experiencing winds of 50 m.p.h. or more upon their return. At that point, the fire fighters were unable to control the blaze. It grew rapidly, joined with another fire that had started some distance away, and eventually burned over 12,000 acres.

Eleven actions were filed against the State for losses suffered due to the fire. All of the suits sounded in negligence, and were consolidated for trial on the issue of liability. At the close of trial, the jury returned its verdict in favor of the State. Judgment was entered thereon, and Plaintiffs appealed.

I. The Exhibits.

Plaintiffs assign error to the District Court's rulings on two pieces of evidence offered by the State. They first argue that both exhibits were irrelevant under Rule 401, M.R.Evid. Plaintiffs further allege that if the exhibits were relevant, their probative value was outweighed by their prejudicial effect, and they should have been excluded under Rule 403, M.R.Evid. The determination of the admissibility of evidence is within the wide discretion of the trial court, and we will not disturb the court's ruling absent a showing of abuse of discretion. State v. J.C.E. (Mont.1988), 767 P.2d 309, 45 St.Rep. 2373; Preston v McDonnell (1983), 203 Mont. 64, 659 P.2d 276.

Plaintiffs first address Defendant's Exhibit "N," a map of the State of Montana. The map had been prepared by Steve Jorgensen of the Department of State Lands, who testified as the State's witness when the map was introduced. Jorgensen used red and orange spots to represent fires occurring within the state between August 15, 1984 (the date of the first Houghton Creek fire), and August 27, 1984 (the date of the second fire). According to the State, the map was offered to counter Plaintiffs' contention that the State had not prioritized its resources properly, and to show the weather conditions existing during the time in question. It is the State's contention that the unexpectedly strong winds of August 27, and not any negligence by the State, caused the fire to "blow up."

Plaintiffs objected on the ground of relevance, but the court admitted the exhibit. After Jorgensen's testimony about the number of fires on the map, Plaintiffs moved for a mistrial. They argued that the exhibit had inflamed the passions of the jury, making it impossible for them to receive a fair trial.

On appeal, Plaintiffs reassert both of these arguments. They note the definition of relevance in Rule 401, "having a tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable...." According to Plaintiffs, the map made no facts relative to the issue of the State's negligence more or less probable. The map did not show the manpower and equipment available to the State, nor was the time frame sufficiently narrow to apply to the weather pattern in effect on the 27th. Plaintiffs assert prejudice in that the map sought to divert attention from the fire at issue and the State's performance in fighting it by graphically presenting the large scale of the fire situation statewide. We disagree.

The State refers to the testimony by Plaintiffs' expert witness regarding prioritization of fire-fighting resources. This witness voiced several criticisms of the fire-fighting methods employed in the Libby area, including the small size of the crews used and the overall lack of manpower on the Houghton Creek fire. On cross-examination, the State brought out the expert's lack of knowledge concerning other fires burning in northwest Montana that required attention. Some representation of the number of fires burning in the area was therefore relevant to the prioritization issue.

The weather was also an issue. Both sides discussed the dry conditions present during the summer of 1984, and the State raised a defense alleging that the unexpectedly strong winds of the 27th were an intervening cause of the flare-up. The map was relevant to each of these questions by showing the large number of fires resulting from the dry, windy weather occurring throughout the time period at issue.

Plaintiffs argue with merit that the map showed a much larger area than was required by the scope of these issues. However, the information offered did make facts concerning the number of fires requiring State attention and the severity of the fire season more probable. The information about the severity of the fire season was also relevant to Plaintiffs' contention that greater care should have been exercised by the State given the dry conditions.

In support of their claim of prejudice, Plaintiffs cite cases from this Court requiring the exclusion of evidence when its probative value is outweighed by its prejudicial effect, including Kuiper v. Goodyear Tire and Rubber Co. (1983), 207 Mont. 37, 673 P.2d 1208 (evidence in products liability case concerning defendant company's political contributions to persons connected with the Watergate scandal); and Welnel v. Hall (1985), 215 Mont. 78, 694 P.2d 1346 (largely speculative testimony in motorcycle-auto collision case that characterized the plaintiff as a stereotypical "biker").

In Kuiper, we found a "total absence" of evidence connecting the defendant's political contributions to the injury caused by its product. The plaintiff's constant reference to the defendant's connection with the scandal--including a 74-page opening statement--had turned the trial into a "political circus." In Welnel, the witness at issue was to testify about seeing a black Harley-Davidson motorcycle ridden by a bushy-haired man wearing a black leather jacket traveling at a high rate of speed. The witness could not identify the plaintiff as the rider, there was evidence showing that the plaintiff had very short hair and was not wearing a jacket on the day of the collision, and the time frame of this observation in reference to the collision was indefinite.

Here, the map was a single exhibit giving a graphic representation of the severe forest fire season cited by both parties in their arguments. Plaintiffs do not dispute its accuracy. As we said above, the scope of the exhibit was broader than necessary. It cannot be said, however, that it was so lacking in probity to be solely for the purpose of drawing the jury's attention from the main issues. Nor can it be said that the map was so inaccurate or indefinite that its possible prejudice outweighed its probative value. We therefore find no abuse of discretion by the District Court in admitting the map.

Exhibit "L," an enlarged photograph of the Houghton Creek burn area taken by Department of State Lands employee Erik Kurtz on August 24, was likewise properly admitted. Plaintiffs contend that the photo, which shows no smoke in the burn area, lacked probative value because it conflicted with Kurtz's own radio log and the testimony of Plaintiffs' expert. A piece of evidence that conflicts with other evidence is not devoid of probity. The conflict affects only the weight it is...