NO. 91-042 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

VALLEY PROPERTIES LIMITED 

PARTNERSHIP, a Montana Limited 

partnership: and VALLEY MOTOR 

SUPPLY COMPANY OF MILES CITY, 

a Montana corporation, 

Plaintiffs and Appellants. 

-vsSTEADHAN'S HARDWARE, INC., 

Defendant and Respondent. 

APPEAL FROM: District Court of the Sixteenth Judicial District, 

In and for the County of Custer, 

The Honorable Kenneth R. Wilson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Richard M. Kovak, Cozen and OtConner, 

Seattle, Washington; James L. Jones, 

Dorsey & Whitney, Billings, Montana. 

For Respondent: 

T. Thomas Singer, Moulton, Bellingham, 

Longo & Mather, Billings, Montana. 

Filed: 

Submitted on briefs: November 14, 1991 

Decided: January 7, 1992 

r 

Clerk 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

Appellants were the owners of a warehouse and commercial 

property in Miles City. A fire started in the portion of the 

building rented to respondent, and destroyed the building. 

Appellants filed a complaint in the Sixteenth Judicial District 

Court, Custer County, for damages resulting from the fire. 

Respondent counterclaimed for its damages. Following a jury trial, 

the ~istrict Court entered a directed verdict in appellants' favor 

on the counterclaim. The jury returned a verdict in respondent's 

favor on appellants' complaint. Appellants appeal from the 

District Court's judgment. We affirm. 

Appellants raise the following issues: 

1. Did the District Court err by refusing to instruct the 

jury on appellants ' theory of res ipso kquitur? 

2. Did the District Court err by refusing to give an 

instruction based upon Tlzayer v. Hicks (1990), 243 Mont. 138, 793 P.2d 

784? 

3. Did the District Court err by allowing an expert witness 

to testify as a rebuttal witness, where the witness had not been 

disclosed before trial? 

In 1988, appellant Valley Properties Limited Partnership 

(Valley Properties) was the owner of a commercial property at 

809 Bridge Street in Miles City. It had purchased the property in 

December 1986. Appellant Valley Motor Supply Company of Miles City 

(Valley Motor Supply) occupied part of this building and used it 

2 
for a parts and accessory tool warehouse. Valley Properties and 

Valley Motor Supply are related in that Valley Properties owns all 

of the real estate in the Northwest Division of Valley Motor Supply 

Company, the parent corporation which controls Valley Motor Supply. 

Appellants will be referred to collectively as "Valley." 

Respondent Steadman's Hardware, Inc., d/b/a Coast to Coast 

Stores, rented a portion of the Bridge Street property and used it 

as a warehouse. Steadman's Hardware had been occupying part of the 

warehouse since 1980 or 1981. Steadman's Hardware had exclusive 

control over its section of the warehouse. All of the doors except 

one were barred or permanently sealed. Steadman's Hardware put a 

lock on the one operable overhead door, and only its employees had 

keys to the lock. 

Steadman's Hardware paid a monthly rent for the warehouse, and 

Valley Properties provided electricity and took care of major 

repairs to the building. The warehouse had been remodeled in 1980 

to provide more space and upgrade the portion of the building 

occupied by Valley Motor Supply. The electrical service was 

replaced on that side of the building at that time. However, the 

wiring for the portion of the building rented to Steadman's 

Hardware was not remodeled nor upgraded. At least some of the 

wiring was quite old, probably dating from the 1930s. The wiring 

was an old-fashioned type, with twisted wire covered by cloth 

insulation. 
On March 10, 1988, the warehouse was quite full. Steadman's 

Hardware had stored water heaters, mowers, bicycles, PVC pipe, 

garbage cans, barbecues, snow blowers, different appliances, 

fertilizer, and various other items in the warehouse. Shortly 

after 2 p.m., two employees, Robert Torgrimson and Lynn Harbaugh, 

went to the warehouse to retrieve an exercise bicycle. Torgrimson, 

who was off duty at the time, wanted to buy the bike. They went 

through the 10' x 10' overhead door and proceeded to the bicycle 

storage area. 

The bicycles were stored in cardboard boxes, stacked three 

high along an aisle. In order to read the labels on the bicycle 

boxes, Harbaugh turned on the lights in the bicycle aisle. The 

lights in this aisle consisted of a heavy cord with a socket at the 

end containing a bare bulb, and a pull chain with a string hanging 

down to operate the light. Rather than being above the aisle, the 

lights were directly above the stacked bicycle boxes. The pull 

string from the lights was draped over the bicycles. 

Because the aisle was rather narrow, Torgrimson waited at the 

end of the aisle. Harbaugh found the exercise bicycle at the 

bottom of the stack, underneath one of the lights. He had to 

remove other bicycles to get at the exercise bike. He took one 

box, or possibly two, and put it on top of the adjacent stack. In 

doing so, the box bumped the light and pushed it over about a foot. 

The pull cord caught on the box and turned off the light. Harbaugh 

untangled the cord and pulled the light back on. Harbaugh dragged 
the exercise bicycle out of the aisle to Torgrimson and the two men 

carried the box out of the warehouse to Torgrimson's car. 

It is not clear whether Harbaugh replaced the cardboard box or 

boxes he had placed on top of the other bicycle boxes. He may have 

left a box on top of the three-high stack, and this box could have 

been in contact with the light bulb. It is also not clear whether 

Harbaugh turned off these lights before leaving the warehouse. 

Torgrimson testified at trial that he did not see Harbaugh restack 

the boxes and he could not tell if any of the boxes were touching 

the light bulb. Torgrimson told a fire investigator the boxes were 

not replaced in the stack. Torgrimson could not remember if the 

lights were left on in the bicycle aisle after they removed the 

exercise bicycle. Harbaugh testified he replaced the other boxes 

before leaving the aisle. He also testified that he thought he 

turned off one of the lights and was not sure about the other one. 

However, at an earlier deposition, and in a statement to fire 

investigators, he stated that he left the lights on because his 

hands were full carrying out the exercise bicycle. Harbaugh did 

not go back into the warehouse to check that the lights were turned 

off. 

About 2:30 p.m., Martin O'Dea, another employee, went to the 

warehouse to get a refrigerator. He opened the overhead door and 

went inside. He noticed a smell that reminded him of burning 

leaves. He was putting the refrigerator on a cart when he noticed 

the lights flicker at the end of the aisle. Then he noticed smoke 
up near the ceiling. He left the refrigerator and went toward the 

main aisle. As he passed the bicycle aisle, he saw flames in that 

aisle at between four and eight feet off the floor. He considered 

trying to put out the fire, but decided it was already too big. He 

crossed the alley to the hardware store and told them to call the 

fire department. The call came into the fire department at 3 p.m. 

Fire fighters arrived within minutes, but flames were already 

shooting out of the overhead door. The firemen had difficulty 

fighting the fire because the other doors were all barred and the 

warehouse was full of merchandise. It took nearly two hours to 

bring the fire under control. The fire fighters were unable to 

save any significant portion of the building. 

In July 1989, Valley Properties and Valley Motor Supply filed 

a complaint for damages in the District Court against Steadman's 

Hardware.' The plaintiffs alleged that the employees of Steadman's 

Hardware had negligently stacked cardboard boxes too close to an 

electric light and caused the fire in the warehouse. Alternatively, the plaintiffs alleged that the fire originated in the 

portion of the warehouse over which Steadman's Hardware had 

exclusive control, and that Steadman's Hardware should be held 

liable for the damages under the doctrine of ref ipsa locfuirur. 

'~egan Plumbing & Heating, Inc., and the County of Custer were 

also plaintiffs in the lawsuit, and Charles Steadman was named as 

a defendant. These parties have settled and/or been dismissed by 

the District Court and are not parties in this appeal. 
Steadman's Hardware answered the complaint, denying any 

negligence and denying that it or its employees caused the fire. 

Steadman's Hardware counterclaimed for the losses it suffered in 

the fire, alleging that the fire originated in the electrical 

system. Steadman's Hardware contended that the owner of the 

building was responsible for the electrical system, that the 

electrical system was inadequate and deteriorated, and that the 

owner should have known of the condition of the electrical system. 

A jury trial was held from July 10-18, 1990. Several 

employees of the various parties testified, as well as several fire 

investigators and other experts. The experts agreed it was 

difficult to ascertain the cause of the fire and there was very 

little direct physical evidence to aid them in determining the 

cause. They generally eliminated arson, spontaneous combustion, 

cigarette smoking, and use of heaters or other appliances as likely 

causes. This left Valley's theory (a cardboard box was left in 

contact with a lighted bulb), and Steadman's Hardware's theory (the 

electrical system malfunctioned or shorted) as the probable 

explanations for the fire. The experts reached quite different 

conclusions, however, as to which of these causes was more likely. 

Chris Rallis, Valley's expert, stated his opinion that the 

fire was caused by a light bulb being left in contact with a 

cardboard box. He had performed tests in which he was able to 

ignite a bicycle carton by placing a light bulb against the box 
under certain conditions. Based on his investigation, he ruled out 

an electrical cause. 

Wesley Sherman, another expert for the plaintiffs, felt that 

the electrical malfunction theory was unlikely, but that the fire 

could have been caused by a light bulb placed against a cardboard 

box. 

Jerry Smith, Battalion Chief of the Miles City Fire 

Department, felt that both theories were plausible, but that the 

light bulb was the more likely cause. 

Donald Howard, a fire investigator retained by the defendant, 

initially felt that the fire was not electrically caused. However, 

after investigating further and conducting tests, he concluded that 

the light bulb was an unlikely source of the fire, and the most 

probable cause was a malfunction in the electrical system. 

Charles King, another expert retained by the defendant, 

expressed the opinion that the light bulb could not have caused the 

fire. He felt that the most probable cause was something in the 

electrical system. 

Kevin Vogel, another defense witness, also testified that the 

fire was probably caused by some electrical incident. 

At the end of the trial, Valley moved for a directed verdict 

on Steadman's Hardware's counterclaim, based on lack of sufficient 

evidence and lack of a showing that Valley had breached any legal 

duty. The District Court granted this motion. The jury returned 

a verdict in favor of Steadman's Hardware on Valley's complaint. 
The District Court entered its judgment on August 3, 1990. 

Valley Properties and Valley Motor Supply appeal from this 

judgment . 

Did the District Court err by refusing to instruct the jury on 

appellants ' theory of res ipsa loqnitur? 

Valley contends the District Court erred by refusing to give 

proposed instructions under the theory of res ipsa loy~iir~ir. We 

disagree. This Court has stated the doctrine of resipsu ioquitztr in the 

following terms: 

(1) It may be inferred that harm suffered by 

the plaintiff is caused by negligence of the 

defendant when 

(a) the event is of a kind which ordinarily 

does not occur in the absence of negligence; 

(b) other responsible causes, including the 

conduct of the plaintiff and third persons, are 

sufficiently eliminated by the evidence; and 

(c) the indicated negligence is within the 

scope of the defendant's duty to the plaintiff. 

Totnpkitzs v. Norilzwes~ern Union Trust Co. (1982) , 198 Mont. 170, 17 6, 645 P. 2d 

402, 406 (quoting Restatement (Second) of Torts 5 328D). 

Under the facts of the present case, the doctrine is not 

applicable. A fire in a warehouse, of unknown origin, may occur in 

the absence of negligence. Further, the evidence did not clearly 

eliminate causes, such as a malfunction in the electrical system, 

which were not chargeable to the occupants of the warehouse. The 

fire investigators and other experts disagreed regarding the cause 

of the fire. Several of these experts suggested that the 
instrumentality causing the fire may have been outside of the 

control of Steadman's Hardware. As noted by the court in Wn'ghl, v. 

L~nitedStates (D-Mont. 1979), 472 F.Supp. 1153, 1156: "[Tlhe doctrine 

of res ipsa ioquilur is not usually applicable in cases of fires of 

unknown origin . . . ." This is such a case. 

I I 

Did the District Court err by refusing to give an instruction 

based upon Thayer v. Hicks (lggo), 243 Mont. 138, 793 P.2d 784? 

Valley contends that the District Court erred by refusing to 

give the following instruction, which was based upon language from 

our opinion in Titnyerv. [-ticks (1990)' 243 Mont. 138, 793 P.2d 784: 

"Plaintiffs are not required to eliminate all possible causes of 

damages in order to prove causation." Valley contends this 

instruction was necessary for Valley to be able to argue its theory 

of the case to the jury. We disagree. 

The District Court gave the following instructions, among 

others: 

INSTRUCTION NO. 5 

Burden of proof means burden of persuasion. A party who 

has the burden of proof must persuade you by the evidence 

that his claim is more probably true than not true. In 

other words, the evidence supporting the propositions 

which a party has the burden of proving must outweigh the 

evidence opposed to it. In determining whether a party 

has met this burden you will consider all the evidence, 

whether produced by the plaintiff or defendant. 

INSTRUCTION NO. 9 

The plaintiffs have the burden of proving: 
1. That the defendant was negligent. 

2. That the plaintiffs* property was damaged. 

3. That the defendant's neqliqence was a cause of the 

damage to plaintiffs' property . . . . 

INSTRUCTION NO. 10 

The defendant's negligent conduct is a cause of the 

damage if it helped produce it and if the damage would 

not have occurred without it. [Emphasis added.] 

These instructions informed the jury what Valley was required to 

prove in order to establish causation. Where other instructions 

adequately cover the law relating to a particular issue, it is not 

error to refuse a proposed instruction on the same subject. NoNv. 

Cily of Bozemarz (l977), 172 Mont. 447, 564 P.2d 1296 (refused 

instruction similar to Valley's proposed instruction). 

I11 

Did the District Court err by allowing an expert witness to 

testify as a rebuttal witness, where the witness had not been 

disclosed before trial? 

Steadman's Hardware called Kevin Vogel, an engineer and 

consultant, as a rebuttal witness. Valley's counsel objected to 

Vogel's testimony on the basis that he had not been listed in the 

pretrial order or previously disclosed to Valley. Valley contends 

the District Court erred by allowing Vogel to testify. 

The determination of whether proposed testimony is admissible 

as rebuttal testimony in a given case is within the sound 

discretion of the District Court, and this Court will not reverse 

the District Court's ruling unless it abused this discretion. !'The 
law does not require the advance disclosure of rebuttal witnesses." 

Massmarz v. City of Helenu (1989), 237 Mont. 234, 243, 773 P.2d 1206, 

1211. 

Here, we note that Valley was allowed to present testimony of 

rebuttal witness Wesley Sherman, in spite of the objection by 

Steadman's Hardware that Sherman was only named as a rebuttal 

witness at the time of the pretrial order, and Steadman's Hardware 

had not had an opportunity to depose him. It does not seem unfair 

that the District Court similarly allowed a belatedly disclosed 

witness to testify in surrebuttal for Steadman's Hardware. We 

conclude that the District Court did not abuse its discretion by 

allowing the witness to testify. 

Accordingly, finding no error in the challenged rulings of the 

District Court, we affirm the judgment. 

i 

i 

I 

. .... . Justices 
January 7, 1992 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

Richard M. Kovak 

COZEN AND O'CONNOR 

5200 Washington Mutual Tower 

1201 Third Avenue 

Seattle, WA 98101-303.1 

James L. Jones 

DORSEY & WHITNLY 

P.O. Box 7 188 

Billings, MT 59103 

T. Thomas Singer, Esq. 

MOULTON, BELLING1 IAM LAW FIRM 

P.O. Box 2559 

Billings, MT 59103 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA