Nelson v. Montana Power Co.

• Decision Date: 11 February 1993
• Docket Number: No. 92-068,92-068
• Citation: 256 Mont. 409,847 P.2d 284
• Parties: James and Linda NELSON, d/b/a Goodtime Sports, and Northwestern National Insurance Group, an insurance company, Plaintiffs and Appellants, v. The MONTANA POWER COMPANY, a Montana corporation, Defendant and Respondent.
• Court: Montana Supreme Court

Page 284

847 P.2d 284

256 Mont. 409

James and Linda NELSON, d/b/a Goodtime Sports, and Northwestern National Insurance Group, an insurance company, Plaintiffs and Appellants, v. The MONTANA POWER COMPANY, a Montana corporation, Defendant and Respondent.

No. 92-068.

Supreme Court of Montana.

Submitted on Briefs Oct. 8, 1992.

Decided Feb. 11, 1993.

E. Eugene Atherton, Tara DePuy, Kalispell, for plaintiffs and appellants.

Robert T. O'Leary, Montana Power Co., Butte, for defendant and respondent.

McDONOUGH, Justice.

This is an appeal from a Sixth Judicial District Court, Park County judgment, granting the defendant's motion for summary judgment. We affirm.

The sole issue on appeal is whether the trial court erred in granting the defendant's motion for summary judgment.

On November 14, 1988, firefighters for the city of Livingston were called to the scene of a fire at Goodtime Sports, a local business, at about 12:30 p.m. No flames were evident but smoke was observed coming from under the eaves.

Livingston Fire Chief Frederick called the dispatch a short time later and requested that they alert Montana Power Company (MPC) about the fire and send workers out to turn the gas and electricity off. Jack Swanson, and Tom Petty, employees of MPC, arrived around 1:40 a.m. Swanson terminated the electricity and Petty stated that he observed a gas meter on the I Street side of the building and it appeared to be off. Petty then walked to the other side of the building and shut off a gas meter there and one at an adjacent building, in the company of Chief Frederick and Assistant Chief Parks.

An affidavit of Jack Swanson states that when he arrived at the scene of the fire, a few minutes before Petty, the building "was totally engulfed in flames and the back of the roof had fallen in." Tom Petty, in an interview on December 22, 1988, stated that the fire involved the whole building and the roof was caved in.

Chief Frederick concluded that the Nelson's loss for the fire was total. (Chief's investigative report) Chief Frederick also stated that between 7:00 and 7:30 a.m., he noticed a gas meter on the I Street side was on so he used a wrench to turn the valve off. State Assistant Fire Marshall, Tom Selleck, stated in his investigative report that the probable cause of the fire was electrical wiring.

After the fire, the Nelsons filed a complaint, later amended, in which they claimed that a MPC employee "negligently, carelessly and recklessly carried out its duty of turning of (sic) the gas service.... As a proximate cause of the negligence ... the fire in the subject building was fed by natural gas which severely complicated suppression efforts and created long and sustained burning leading to considerably more property damage than would have or should have occurred had the Defendant properly shut off the gas utility."

The defendant filed a motion for summary judgment in August of 1991. The motion was granted on December 2, 1991, and the judgment was entered on December 9, 1991. This appeal from that decision followed.

"Under Rule 56(c), M.R.Civ.P., summary judgment is proper if the record discloses no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law." Kaseta v. N. Western Agency of Gr. Falls (1992), 252 Mont. 135, 138, 827 P.2d 804, 806.

The Nelsons contend that there is a factual controversy which precludes a grant of summary judgment--"whether MPC carried out its duty to turn off the gas service to the building." MPC counters that whether the gas was on or off, "there was no evidence that natural gas either fed the fire or contributed to its spread and resulting damage." Although there is a question about whether MPC turned off the gas service to Goodtime Sports, this Court agrees with MPC that no evidence was presented to show that natural gas fed the fire or increased the fire damage, regardless of whether the gas was on.

Firefighters Wagman and Spannring made full reports after the fire and neither mentions seeing blue flames or smelling natural gas, nor do they provide any information that might lead one to believe that natural gas was involved in feeding or increasing the fire. Also,...