NO. 94-490

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

BRIAN ROBERT CONTRERAS,

Plaintiff and Appellant,

-vVANNOY HEATING & AIR

CONDITIONING, INC.

Defendant and Respondent.

APPEAL FROM: District Court of the Thirteenth Judicial District,

1n and for the County of Yellowstone,

The Honorable William J. Speare, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

James D. Walen, Stacey & Walen, Billings, Montana

For Respondent:

Don M. Hayes, Herndon, Hartman, Sweeney & Halverson,

Billings, Montana

Submitted on Briefs: January 26, 1995

Decided: March 30, 1995

Filed:
Justice Fred J. Weber delivered the Opinion of the Court

This is an appeal from a jury verdict in the Thirteenth

Judicial District court, Yellowstone county, finding for

defendants. We affirm.

We consider the following issues on appeal:

I . Did the District Court err when it denied plaintiff's motions

for partial summary judgment and for directed verdict on the issue

of liability?

II. Did the District Court improperly instruct the jury?

Brian Contreras (Contreras) worked for the City of Billings on

June 30, 1987, when the explosion that is in controversy here

occurred. Contreras was a fifteen year old and worked through the

District Seven Human Resources Development Council, an agency that

provides employment and training for underprivileged minors.

Contreras worked as a maintenance trainee at the Parmly Library

Building.

On June 30, 1987, Contreras's supervisor, James Southworth

(Southworth), instructed Contreras to clean the boiler room

situated on the fourth floor of the building. While cleaning the

room with a backpack vacuum cleaner, Contreras hit a valve on a gas

line, approximately six inches from the boiler. The valve fell off

the gas line and natural gas began to leak out of the line.

Contreras ran after Southworth who immediately came to the

boiler room and unsuccessfully attempted to stop the leak. A pilot

light on the boiler ignited the gas and an explosion resulted,

causing Contreras severe burns.

2
Contreras filed a complaint on June 20, 1990, against the City

of Billings, Southworth, and a number of John Does. Southworth and

the City of Billings were dismissed following their motion for

summary judgment. Contreras then amended his complaint to add

Vannoy Heating & Air Conditioning, Inc. (Vannoy) as a defendant.

Vannoy had a contract with the library for the heating, ventilating

and air conditioning system (HVAC) maintenance. Contreras alleged

he would not have been injured had Vannoy inspected the valve as it

was required to do.

Both parties filed cross motions for summary judgment which

were denied on March 15, 1994. Trial was held on April 18, 19 and

20, 1994, followed by both parties' move for a directed verdict.

Both were denied. On April 25, 1994, the jury found that Vannoy

was not negligent. Contreras' May 9, 1994, motion for a new trial

was denied on May 25, 1994. Contreras appeals from the judgment

entered for defendant Vannoy.

Did the District Court err when it denied plaintiff's motions

for partial summary judgment and for directed verdict on the issue

of liability?

Contreras argues that under its contract, Vannoy was

responsible for all hand valves in the HVAC system and that the gas

shut off valve was such a hand valve. Contreras also contends that

no one from Vannoy ever inspected the valve; and because the

contract specifically calls for inspection of the system of which

the valve was a part, the court should have directed a verdict or

3
granted partial summary judgment to Contreras.

Vannoy argues that the gas shut off valve was a

nonmaintainable part of the system for which it had no

responsibility under the contract. Vannoy further asserts that the

contract is ambiguous concerning the valve in question and the jury

had the responsibility to decide whether Vannoy had a duty or not.

If there is any evidence that warrants submission to the jury,

a directed verdict is inappropriate. Kearney v. KXLF

Communications, Inc. (1994), 263 Mont. 407, 869 P.2d 772. A party

is entitled to summary judgment only if no genuine issues of

material fact exist and it is entitled to judgment as a matter of

law. McDonald v. Anderson (1993), 261 Mont. 268, 862 P.2d 402. In

order to prove any claim of negligence, a party has to show duty,

breach of that duty, and resulting damage caused by the defendant.

Lindey's v. Goodover (1994), 264 Mont. 449, 872 P.2d 764.

The court denied summary judgment because it determined that

genuine issues of material fact existed. Following the trial, the

court denied both plaintiff's and defendant's motion for directed

verdict.

In order for Contreras to be granted summary judgment or a

directed verdict on the issue of Vannoy's liability, he had to show

that all evidence submitted proves that Vannoy had a duty to

Contreras and that it breached that duty. Contreras argues that

the existence of a legal duty is a question of law for the court.

If there are issues of fact as to the presence or absence of a duty

owed to the plaintiff, then the court must instruct the jury to

4
make the initial fact determination, and then apply the correct

standard as furnished by the court. Olson v. Kayser (1973), 161

Mont. 241, 505 P.2d 394.

The two parties presented facts demonstrating a controversy as

to the existence of a duty owed to Contreras. To make a

determination as to the presence of a duty, the jury had to decide

whether the valve was a "hand valve" or a "nonmaintainable" part of

HVAC or not a part of HVAC at all. Contreras argues that the valve

was a hand valve and under the contract repair and maintenance of

all hand valves was required. Contreras also referred to another

part of the contract which required Vannoy to inspect the entire

system and he contends the valve was a part of the system.

Vannoy introduced evidence which demonstrated that the valve

was not a part of the HVAC system. Vannoy pointed out that if the

valve was part of the piping and duct work on the boiler, then

Vannoy was not responsible for inspection or maintenance.

Witnesses Aron Schenk and Rod Putnam testified that the valve in

question was not part of their responsibility under the contract

between Vannoy and the City of Billings. Southworth testified that

his maintenance staff worked on valves such as this and only called

Vannoy when there was a problem. There is substantial evidence

from which the jury could have concluded that under its contract,

Vannoy was not responsible for the valve.

In addition to employees of Vannoy, Vannoy presented evidence

that the company responsible for the HVAC system before Vannoy took

over the contract did not consider the valve as part of its

5
responsibility to inspect or repair. Also, an engineer testified

that it was possible to consider the valve as part of the piping

and duct work for which Vannoy had no responsibility.

We conclude there were significant issues of material fact

which precluded summary judgment. In a similar manner, there

remained significant issues of fact as to the presence or absence

of a duty owed to Contreras which precluded a directed verdict.

Depending on which set of facts the jury believed, a different

duty would ensue. The fact finder had to determine whether the

contract was applicable to the valve in question and then, if it

was applicable, which section of the contract described the valve

in question: the section relating to hand valves as being within

Vannoy's scope of responsibility or the section that describes nonmaintainable parts of the system for which Vannoy did not have

responsibility. There is no way the duty and breach elements of

negligence could have been determined without a determination of

which facts were applicable.

Both sides also presented testimony about the element of

causation. Vannoy contended that Contreras was responsible for his

own injury. Vannoy's manager testified that if the valve had been

damaged prior to Contreras' hitting it with the vacuum cleaner, gas

would have been leaking from the valve. Contreras' own supervisor,

Southworth, who had been in the boiler room a short while before

the explosion, testified that there was no gas odor before

Contreras hit the valve. The State Boiler Investigators who

inspected the boiler in 1986, passed the boiler after an inspection

6
found everything in working condition. Thus, evidence was

presented that the valve did not leak. Further, Southworth

testified that when he smelled the strong gas odor on the fourth

floor after being summoned by Contreras, he yelled for everyone to

get out because the boiler was going to blow. Contreras did not

move from the doorway of the boiler room. We finally conclude

that substantial evidence was presented from which the jury could

have determined that the actions of Vannoy did not cause Contreras'

injury.

The record shows that both sides produced evidence and

testimony to support their arguments concerning all three elements

of negligence in contention: duty, breach of duty, and causation.

Because of the conflict in the evidence as to the duty on the part

of Vannoy, the court instructed the jury as follows:

Instruction #lO

Plaintiff contends Defendant had a duty under the

maintenance contract between Defendant and the City of

Billings to maintain and service the valve which caused

the explosion. Plaintiff further contends that Defendant

had the duty to exercise reasonable care and skill in

inspecting, servicing and maintaining the HVAC system.

Defendant contends it did not have a duty under the

maintenance contract between it and the City of Billings

to maintain and service the valve which caused the

explosion.

In resolving the question of Defendant's duty, the

jury may consider the contract, exhibit 9, the intent of

the parties when they made the contract and the actions

of the parties in fulfillment of the contract.

The court went on to instruct the jury about all facets of

negligence including the burden of proof and elements of

negligence, proximate causation, and intervening cause. While we

do not know from the jury verdict which element of negligence was

7
not proven to the jury's satisfaction, the record indicates that

they were instructed properly concerning the negligence theory.

W e conclude that SJllNXXy judgment would have been

inappropriate because genuine issues of material fact existed as to

Vannoy's liability. A directed verdict on the issue of liability

would have been inappropriate because the determinative question in

this case was one of fact and both sides presented facts to support

their positions. The District Court did not err in denying the

motion for partial summary judgment and the motion for directed

verdict on the issue of liability.

II.

Did the District Court improperly instruct the jury?

Contreras argues that the court improperly instructed the jury

by not giving instructions on his theory of the case. Vannoy

argues that the instructions were appropriate and presented an

accurate view of the law. It is within the District Court's

discretion to decide how to instruct the jury, taking into account

theories of contending parties, and we will not overturn the court

except for abuse of discretion. Hall v. Big Sky Lumber & Supply,

Inc. (1993), 261 Mont. 328, 863 P.2d 389.

Plaintiffs Proposed Instructions #20, 20A, 20B and 2OC

Contreras argues that he was denied a fair trial because the

court did not give these four instructions and, therefore, the jury

was denied consideration of his side of the case. The above

instructions acted to direct a verdict on the element of duty:

"YOU are instructed that the gas hand valve in question was covered

8
by the HVAC Maintenance Agreement . .'I Proposed instruction #20.

This assumes facts in question. All four instructions were worded

to direct the jury that Vannoy had a duty under the contract. The

court did not err in failing to give these four instructions.

Plaintiff's Proposed Instruction #17, 24, and 25

Contreras argues that these instructions were needed to

properly present his theory of the case. A review of these

instructions reveals that they are duplicitous and not correct

statements of the law.

Proposed Instruction #17 states:

More than one person may be liable for causing an

injury. A defendant may not avoid liability by claiming

that some other person (whether or not named as a

defendant in this action) helped cause the injury.

The idea of multiple liable parties was handled adequately by the

court's instructions #lO through 18. The proposed wording is not

totally accurate because it does not present the entire picture to

the jury. The court's instructions #13 and #14 talk about the

specifics of both plaintiff's and defendant's burden of proof for

their theories of liability.

Proposed Instruction #24 states:

Where one has negligently caused a condition of

danger, he is not relieved of responsibility for damage

caused to another merely because the injury also involved

the later misconduct of someone else, if that conduct was

foreseeable.

The court gave instead Instruction #lS:

An intervening cause does not relieve an actor from

liability for his negligent acts where the intervening

cause is one which the defendant might reasonably

anticipate under the circumstances.

9
a duty which, we have already stated, cannot be assumed under the

facts of this case.

Proposed Instruction #21 stated:

Defendant and its employees owed a duty to perform

its work with reasonable care and skill so as not to

cause injury to the person of another.

The court gave instruction #ll which stated that "Every person" is

responsible for injury to the person or property of another, caused

by his or her negligence. Contreras' version is confusing as it

could be construed by the jury as a directed verdict on the element

of duty. As mentioned before, whether the element of duty was

satisfied depended upon the set of facts that the jury found to be

true.

Plaintiff's Proposed Instruction #23

Contreras offered Proposed Instruction #23 which stated:

A legal doctrine called "res ipsa loquitur" is

involved in this case. The meaning of the term is, "it

speaks for itself." Under this doctrine, even though

negligence has not been proven by other evidence, you may

infer negligence from the circumstances surrounding an

event if you find from a preponderance of the evidence

that: (1) the event is of a kind which ordinarily does

not occur in the absence of negligence; (2) other causes,

including the conduct of the plaintiff and other persons,

have been sufficiently eliminated by the evidence.

Contreras argues that this is a "classic res ipsa loquitur" case.

That is not accurate.

Res ipsa loquitur does not permit the presumption of

negligence; a plaintiff must make a prima facie case that

defendant breached a duty of care before the question

goes to the jury.

Clark v. Norris (19871, 226 Mont. 43, 48, 734 P.2d 182, 185. The

elements of duty and breach of duty were very much in question

11
under the facts of this case.

Further, the doctrine of res ipsa loquitur encompasses an

element of "exclusive control" of the instrumentality involved.

Dalton v. Kalispell Hospital (1993), 256 Mont. 243, 846 P.2d 960.

The "instrumentality" involved, the valve, would have to have been

under the exclusive control of Vannoy. Control is a significant

issue in the case. Further, the key to the boiler room hung on a

hook in an adjoining room where anyone could have taken it.

Contreras cannot use this theory to bypass presentation of evidence

on the elements of negligence.

We conclude that the court properly instructed the jury on all

theories of the case and on the appropriate law. We hold that the

District Court did not abuse its discretion in instructing the

jury.

Affirmed.

We Concur:

12