DA 08-0217

IN THE SUPREME COURT OF THE STATE OF MONTANA

2009 MT 49N

RYAN FUNKE,

Plaintiff and Appellee,

v.

CITY OF POLSON,

Defendant and Appellant.

APPEAL FROM: District Court of the Twentieth Judicial District,

In and For the County of Lake, Cause No. DV 04-176

Honorable Deborah Kim Christopher, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

William L. Crowley and Natasha Prinzing Jones, Boone Karlberg,

Missoula, Montana

For Appellee:

John M. Fitzpatrick, Buxbaum, Daue & Fitzpatrick, Missoula, Montana

Submitted on Briefs: February 4, 2009

Decided: February 24, 2009

Filed:

__________________________________________

Clerk

February 24 2009
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Justice Brian Morris delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

OperatingRules, as amended in 2003, the following memorandumdecision shall not be cited

as precedent. It shall be filed as a public document with the Clerk ofthe Supreme Court and

its case title, Supreme Court cause number and disposition shall be included in this Court’s

quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2 Appellant City of Polson (City) appeals several evidentiary rulings made by the

District Court and the District Court’s decisions on jury instructions following a jury’s

verdict in favor of Appellee Ryan Funke (Funke). We affirm.

¶3 The outside deck ofthe Diamond Horseshoe lounge and casino collapsed on thenight

ofJuly 30, 2004. The collapse caused numerousinjuries, including to Funke. Funke filed a

complaint that asserted claims against Diamond Horseshoe, Inc., Bert Shultz, and the City.

Funke alleged that the City negligently had inspected and approved plansfor construction of

the deck. Funke also claimed that the City negligently had failed to act upon a phone call

from a citizen on the day of the collapse that the deck was unsafe.

¶4 At trial, the District Court admitted, over the City’s objection, testimony concerning

an alleged telephone call from a concerned citizen to the office of the City’s building

inspector on the day that the deck collapsed. The caller testified that he telephoned the City

to warn about the deck’simpending collapse. The caller testified that the building inspector

assured him that he would investigate. The District Court also admitted, over the City’s

objection, testimony regarding whether the City had approved plans for the deck and had
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inspected the finished deck nearly 15 years before its collapse.

¶5 The parties submitted proposed jury instructions. The City offered instructions that

addressed the creation of a special relationship between the City and a person that would

create a duty of care on the City’s behalf. The City’s proposed instruction further required

that a person rely to his detriment on the City’s assurances. The court refused these

instructions on the grounds that neither Appellee Funke nor Shultz were asserting

detrimental reliance upon or inducement by any governmental action. The court provided to

the jury, over the City’s objection, an instruction setting forth the City’s duty to act with

reasonable care.

¶6 The jury returned a verdict in favor of Funke. The jury apportioned liability 95%

against Shultz and 5% against the City. The City appeals.

¶7 The City first argues on appeal that the court erred in allowing testimony regarding

the alleged phone call to the building inspector. The City argues that the court similarly

erred in allowing testimony regarding whether the City had approved the plans for the deck

and had inspected the completed deck. The City finally contends that the District Court

erred in giving various jury instructions regarding the City’s legal duty, and refusing the

City’s proposed instructions on the same issue.

¶8 We review a district court’s evidentiary rulings for an abuse of discretion. First

Citizens Bank v. Sullivan, 2008 MT 428, ¶ 19, 347 Mont. 452, ___ P.3d ___. We also review

a district court’s jury instructions for an abuse of discretion. Olson v. Shumaker Truck. and

Excav. Contr., 2008 MT 378, ¶ 22, 347 Mont. 1, 196 P.3d 1265. We must consider the jury

instruction in its entirety, as well as in connection with the other instructions given and with
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the evidence introduced at trial. Murphy Homes, Inc. v. Muller, 2007 MT 140, ¶ 74, 337

Mont. 411, 162 P.3d 106.

¶9 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our

1996 Internal OperatingRules, as amended in 2003, that provide for memorandumopinions.

It is manifest on the face of the briefs and record before us that the District Court did not

abuse its discretion in allowing evidence regarding the alleged phone call to the City and in

allowing evidence concerning the City’sinspection ofthe deck. It is further manifest on the

face of the briefs and record before us that the District Court did not abuse its discretion in

instructing the jury on the City’s legal duty.

¶10 We affirm.

/S/ BRIAN MORRIS

We Concur:

/S/ MIKE McGRATH

/S/ JOHN WARNER

/S/ PATRICIA COTTER

/S/ JIM RICE