Lanham v. Idaho Power Co.
| Citation | 130 Idaho 486,943 P.2d 912 |
| Decision Date | 07 August 1997 |
| Docket Number | No. 23172,23172 |
| Parties | Rex E. LANHAM, Jr., Everett Lanham, Todd Lanham and Kenneth Lanham, Plaintiffs-Appellants-Cross Respondents, v. IDAHO POWER COMPANY, an Idaho corporation, Defendant-Respondent-Cross Appellant. . Boise, April 1997 Term |
| Court | United States State Supreme Court of Idaho |
Marcus, Merrick & Montgomery, Boise, for appellant. Michael R. Christian argued.
Penland Munther Boardman, Chtd., Boise, for respondent. Richard C. Boardman argued.
This is an appeal from a jury verdict and judgment in favor of respondent Idaho Power Company (IPC) in a negligence and breach of contract action arising out of a fire which occurred on the Lanhams' property on June 11-12, 1992. We affirm.
The Lanhams own timbered property along State Highway 21 north of Boise. In 1981, the Lanhams and IPC entered into an agreement (Agreement) whereby the Lanhams granted IPC an easement across the property to allow IPC to install and maintain a power line. Under the Agreement, the Lanhams also gave IPC the right to cut and clear away trees and brush outside the easement which could endanger the line. In return, IPC agreed to exercise reasonable care in maintaining the environmental integrity of the area and to repair any damage to the property caused by its operation or maintenance of the line. In May of 1992, Todd Lanham informed IPC that there were large trees ("danger trees") close to the power line which could fall onto the line. According to the Lanhams, IPC did not remove the trees, and in the area near the origin of the fire, between six and eight danger trees were present. The fire, which burned approximately one hundred acres, began on June 11, 1992. Todd Lanham, the first on the scene, testified that he saw a fallen tree lying across a downed power line.
On June 29, 1994, the Lanhams sued IPC, alleging negligence and breach of contract. Prior to trial, the Lanhams filed a motion in limine to exclude the anticipated testimony of James Ashby, IPC's fire investigation expert. The court denied the motion. At trial with Ashby on the stand, the Lanhams again objected to his testimony. The court overruled their objections and allowed Ashby to testify as to potential causes of the fire and to offer his opinion that the most likely cause of the fire was a lightning strike.
After trial, the jury returned a verdict in favor of IPC, specifically finding that there was no negligence on the part of IPC that proximately caused the fire and that IPC did not breach its contract with the Lanhams. On November 1, 1995, the Lanhams moved for: (1) judgment notwithstanding the verdict (JNOV) on the issue of IPC's breach of its duty of care and breach of contract for failing to remove the danger trees, and a new trial on the remaining issues; or (2) in the alternative, a new trial on all issues. On June 21, 1996, the court denied the Lanhams' motions. IPC moved for an award of attorney's fees on November 3, 1995, which the court also denied.
Both the Lanhams and IPC appeal. On appeal, the Lanhams contend that the district court erred in denying the Lanhams' motion in limine and admitting, over objection, the testimony of James Ashby at trial. They further argue that the lower court erred in giving Jury Instruction No. 9, which instructed the jury on the duty of care required of an electric utility. Finally, they assert that the court erred in denying their post-trial motions. IPC argues on appeal that the court erred in denying its request for attorney's fees. IPC also seeks attorney's fees on appeal.
We review lower court decisions admitting or excluding evidence, including the testimony of expert witnesses, under the abuse of discretion standard. Burgess v. Salmon River Canal Co., Ltd., 127 Idaho 565, 574, 903 P.2d 730, 739 (1995) (citing Hopkins v. Duo-Fast Corp., 123 Idaho 205, 210, 846 P.2d 207, 212 (1993)). In the case of an incorrect ruling regarding evidence, a new trial is merited only if the error affects a substantial right of one of the parties. I.R.C.P. 61; I.R.E. 103; Burgess, 127 Idaho at 574, 903 P.2d at 739; Hake v. DeLane, 117 Idaho 1058, 1065, 793 P.2d 1230, 1237 (1990).
Based on Ashby's pretrial deposition, the Lanhams filed their motion in limine to exclude Ashby's anticipated testimony on the grounds that it lacked foundation, was not based on his independent judgment, and was speculative. They specifically objected to his anticipated testimony that: several events could have ignited the fire; lightning could have struck the Lanhams' property; and We hold that the lower court did not abuse its discretion in denying the Lanhams' motion in limine. The trial judge is entitled to wait and hear the actual foundation laid at trial prior to determining whether to admit or exclude an expert opinion.
lightning could have started the fire. After hearing arguments on the motion, the court first noted that "reasonably likely causes" of the fire were relevant. The court then held that Ashby could testify at trial but required IPC to lay an adequate foundation prior to his offering an opinion. The court also agreed to hear specific objections to Ashby's testimony at trial.
At trial, the Lanhams again objected to Ashby's testimony, reiterating the arguments made in their pre-trial motion in limine. The court again overruled the Lanhams' objections.
On appeal, the Lanhams first assert error in the admission of Ashby's opinion that several causes could have led to the fire. At trial, Ashby began by describing his qualifications as an expert in fire investigation and then discussed the techniques used by trained investigators to ascertain the cause and origin of a fire: determining the origin of the fire (the site where the fire began) and then isolating the cause of the fire by identifying potential causes and eliminating them, one by one. In this case, he stated that he "was not able to make any definitive cause or origin investigation" due to the delay of over two years between the fire and the investigation (a delay caused by the late date of the Lanhams' filing suit). He then testified that he had considered a number of possible causes for the fire on the property, including smoking, vehicles on the road through the fire area, campers, arson, a downed power line, and lightning. Given the weather conditions present on the day of the fire, Ashby asserted that he could not eliminate any of these possible causes. He admitted, however, that he had found no physical evidence at the fire scene to support smoking, vehicles, campers, or arson as the cause of the fire. He stated that there was evidence that "a tree limb was down on the power lines, the power lines were down, at least fairly early in the fire," but he found no evidence to indicate that the downed power line actually caused the fire.
The Lanhams argue that no evidence in the record supports any causes of the fire other than a downed power line or a lightning strike. As a result, they assert that testimony regarding any cause other than these two should have been excluded as speculative under I.R.E. 403.
We hold that the trial court did not err in permitting Ashby to testify about possible causes of the fire. All reasonably likely causes of the fire were relevant because the fire's cause was a central element of both of the Lanhams' causes of action. Ashby's testimony made it clear that, although he found no physical evidence at the scene of the fire during his on-site investigation three years later, he could not rule out any of the potential causes that he described. Given the process of elimination used by fire investigators to determine the cause of a fire, it was appropriate for Ashby to discuss potential causes that he could not rule out.
The Lanhams also argue that the court improperly admitted Ashby's opinion that lightning was the most likely cause of the fire. As grounds for this opinion, Ashby relied on the following evidence: (1) weather conditions on the day of the fire were such that a lightning strike could have ignited the fire; (2) lightning strike data obtained from the Bureau of Land Management (BLM) indicated that lightning had moved through the general area within twenty-four hours prior to the fire; and (3) eyewitnesses testified at trial that, in its early stages, the fire was not burning adjacent to the downed power line but up the hill from it, on the ridge. 1 The Lanhams argue that this opinion was inadmissible
because it was not supported by an adequate foundation.
The Lanhams first dispute the admission of Ashby's interpretation of lightning strike data obtained from the BLM. Ashby testified that he had contacted the BLM to see if he could eliminate lightning as a potential source of the fire. He explained that the BLM system detects lightning strikes using various antennae. If a strike is detected by at least two antennae, the approximate site of the strike can be located. Ashby emphasized, however, that this detection system is not designed to pinpoint the location of lightning strikes; instead, it is useful in determining whether a lightning system has passed through a specific area. Given the limitations of the system, which Ashby described in detail, the strikes are plotted geographically with a certain margin of error. With respect to the fire on the Lanhams' property, Ashby testified that the BLM lightning strike data indicated that a "fair amount of lightning" had moved through the area within the twenty-four hours preceding the fire. Ashby emphasized:
I used this information as a fire investigator not to pinpoint that plot or the exact strike, as I have already indicated, but simply as a confirmation that I had lightning moving through the area in a time frame...
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