IF: THE SUPREME COIJRT OF TFE STATE OF MONTANA

HUBERT J. MASSMAN, d/b/aHORSKY BLOCK, HUBERT J. MASSMAN,d/b/aMASSMAM LAW FIRM,MILLER ENTERPRISES, INC., a Montana corporation, and EPISCOPAL DIOCESEOF MONTANA, a corporation, Plaintiffs and Appellants,-vsCITY OF HEI,ENA,a Municipal Corporation, Defendant and Respondent.

APPEAL FROM: District Court of the FirstJudicial District, Inand for the County ofLewis & Clark, The Honorable Mark P, Sullivan,Zudgepresidina.
COUNSELOF RECORD:

For Appel-l ant: Frank R. Morrison, Jr. argued; Morrison TIAW Firm, Helena,Movtana
For Respondent: Robert Emmons argued; Emmons & Coder,Great Falls, Montana

Submitted: February 21, 1989
Decided: 2, 1989

,. \. ~i

# fdd : t-i-.:

II .'.f

. ;; L.."

.. :. ?

. . <?'

,... - -- -- L.... Clerk -Mr. Justice L. C. Gulbrandson delivered the Opinion 

### of the Court.Plaintiffs appeal from the jury verdict and subsequent judgment of December 23, 1987, and from the denial of their Irction for a new trial by the First JudicialDistrict Court, Lewis and Clark Countlr. The jury found the City of Helena

(City)was not negligent in failing to require an operating sprinkler system in the basement of the Spectrum Building prior t:o the time of the fire in thebuilding. The jury also found that the spread of the fire to the adjacent Horsky Block Building was not caused 

### by any negligent fFrefighting methods or procedures employed by the City. Defendant filed

a cross-appeal from the final judgnent. We affirm the jury verdict, judgment entered, and District.Court's denial of the motion for a new trial. Appellant raised the following issues on appeal: 1. Did the District Court err in refusing plaintiffs' offered instruction stating that violation of a city ordinance isnegligenceper se? ?. Did 

### the District Court err- jn refusing to allow plairltiffs to ask opinion testimony of two people disclosedl

aswitnesses but not as experts? 3. Did the DistrictCourt err in refusing the rebuttal testimony 

### of an expert called to dispute the City's evidence that i.t.was not negligent in fighting the Spectrum Building fire? 

### 4. Did the City improperly prejudice the jury by repeztedmention of insuranceduring trial? Respondent raised numerous cross-appeal issues, which



### we wf'l address in our discussi~n of the four above-mentioned eppeal issues,including the following:1. Is the City exempted from any liability for the fireby the Public Duty Doctrine? 2. Is the City exempted from any liabilitlr for the Lireby the grandfather clause in 5 502 of theUBC? 3. Is the City exempted from any liability for the fire by general tort principles extending liability only to foreseeable act-ions? On June 17, 1980,a fire started in thebasement of the Spectrum Ruildi-ng in downtown Helena. The fire quickly spread 

### to the a?jzcent Horsky Block Building and completely destroyed it. At the time of the fire,the SpectrumBuilding

was being remocleledby its owner, Ben Brown. The initial building permit obtained by Brown on May

3-

### , 1979 authorized him tomake up to $15,00G in 'alterations to the huildjng. (Brown subsequently obtained various plumbing, electrical and mechanical remodeling permits.) Lewis Thorne, the building inspector for the Cityr later determined as 

### a result of his regular biweekly inspections that Brown had exceeded those building alterationc authorized. Consequently,Thorne issued a stop order on Jul:7 31, 1379. Brown then obtained two additional building permits, one on August 6, 13'9 an2 the other on August 

## z7, 1-979,which enabled him to continue remodeling the old Coast to Coast stcre into various retail shops and a restaurant. These two permits allowed for additional alterations in the

sum of $78,000. All building permits required Brown to work in compliance with City Ordinances. One such ordinance, incorporating the 1976URC, required an operational sprinkler sl-stem in the basements of remodeled buildings having a changed occupational charscter the same or more hazardous than theprior use. (GJ 502,UFC (1976).)Prior to a final inspection and a final certificate

### of occupancy, the City issued a temporary certificate which permitted Rose's Cantina to open its restaurant on the top fl.oor of the remodeled Spectrum Bui1din.q. This temporary certificateofoccupancy was issuedprior to the installation of an operational sprinkler system in the basement of the building. Pipes for the sprinkler system were on the basement floor, but not instal.lec1 at the time of the fire. The riser for the system had been install-edbut it had not been connected to the sprinklerhea.ds. The fire was called in at 9:51 p.m. on June 17, 1980. Firefigllters arrived on the scene minutes afterwards. Two firefighters attempted to get t.n the fire, located in the

rear of the basement, from the one entrance located at the front cf thebasement. However, a sheetrockedpartitionha?. been placed just inside the hasement and this blocked access to the fire. Firefighters thus were unable to directly treat the fire while it still was contained within the basement, and it quickly spreadupwards and then to the adjacent Horsky Block Building. John Carroll, one of the two investigators hired to determine the cause of the fire, stated that had fire sprinklers been in place in the Spectrum Building basement, the fire would not have spread to the Horsky Block Building. 

### A later examination indicate?. the fire began in a basement st-orage closet under the stairs. No electrical appliances were 

### in the im~ediate vicinity of this area. The origin location, the presence of various combustibles in the

area of the fire origin, and the erected.partj.tionblocking firefighter access led fire investigators to conclude that the fire was incendiary (man-male)in origin. The parties 

### di6. not dispute the incendiary nature 

### of the fire.Consequently,on December 7, 1987, the DistrictCourt grante2 summary judgment on the issue cf the cause of the fire. The court,however,denied the City's motion for summary judgment

on the issueof the duty owed tc plaintiffs. A jury trial began on December 14, 1987. The jury returned averdict in lavor of the City on December 17, 1987. Plaintiffs filed a timely motion for a new trial after final judgnent was entered, but the court denied this nction. Plaintiffs then filed this appeal from the court's denial of

a new trial and frorr, the firla: j-cidam~nt. Defendant cross-appealed.

i. T7IOLATION OF A CITY ORDINANCEAS NEGLIGENCE PER SE Appellanl-.scontend that their damagesresulted from thc City's nealigence in failing to enforce section 3802(b)(1)of the 1976 TJRC. They contend violation of the UBC, expresslv adopted by City ordinance, constituted negligence per se 2nd that the City should therefore be held liable for damage? arising because of this ~riolation.Appellants thus argue the District Court erred in refusins to cffer 

### a fury instruction on negligenceper se. Section 104(a) of the 1976 UBC generally requires all buildings altered after 1376, even if the buildings existed pricr to 1976, to comply with all new building requirement? provided in the UBC. The Spectrum Building as a preexisting building under extensive remodeling thus ha?. to comply wjth the requirements of theURC. UBC requirements mandate the installation and naintenance 

### cf an operational, standard automatic fireextinguishing system jn the basement, and on every story, cf a31buil2ings such as the Spectru~ Buildingwhich contained a 

### large hsevent a~i a cl?rcifiec?as a Group F," huilc'inq.See, section 3802(b)(I), IJBC (1976). As stated in section

Standard automatic fire-extinguishina systems shallbe installed andmaintained in operable condition 

# ..

# . [iln every story, basement or cellar of all buildings exceptGroups R,Division 3and M Occupancies when floor area exceeds 1500 square feet and there is not provided at least 20 square feet oi opening entirely above the adjoining ground level in each 50 lineal feet or fraction thereof of exterior wall in the story,basement or cellar on at least one side of the building

# .. . If 

### any portion of a basement or cellar is located more than 75 feet from openings required in this Section, the hasement or cellar shall he provided with an approved automatic fire-extinguishing system. Section 306 of the UBC provides guidance as to when this fire-extinguishing system must be installed. Section 306(a) generally states that a building may not be used or occupied "until the Building Official has issued a Certificate of Occupancy." Section 306(c)

## , UBC. The Building Official may not issue such a certificate until a final inspection confirms the building's compliance with URC requirements. No other UBC provisions expressly requirethe operationof a fire-extinguishing system prior to issuance o+ this final Certificate of Occupancy. We therefore hold that although the Ruilding Inspector, acting on behalf of the City, had the duty of enforcing the requirement of an operational fire-extinguishing system, this duty did not arise until such time as the final Certificate 

### of Occrxpancjl

was issued. The remodeling of the Spectrum Ruj-ldinghad not been completed at 

### the time 05 the fireon June 17, 1980. bTofinalinspection or final Certificate of Occupancy had been issue6 prior to this time. The City had, however, issued a temporary Certificate of Occupancy which permitted the restaurant located on the top floor of the Spectrum Buildinq to open forbusiness. The UBC expressly authorizes the City to issue such a temporary certificate so that the finished portion of a building may be used before completion of the entirebuilding. The UBC doesnot require thebuilding to be in compliance with UAC requirementsprior to issuance of this temporary certificate. Section 306(d)

## ,tJBC (1976)

# . Because the City had no duty to ensure the operation of

a fire-extinguishing system before it issued the temporary Certificate of Occupancy or until such time as it issued a final Certificate of Occupancy, the City may not be held negligent for failing to enforce the requirement of an operational fire-extinguishing system before June 17, 1980. For this reason, we hold that the failure to offer 

### a jury instruction on negligence per se did not amount to an abuse of discretion. Having so ruled, we need not address the various other issues raisedby the City as further support for its argument that it should not be held liable for damages arising from the fire. These issues incl-uded whether the City was protected from liability by the Public Duty Doctrine,by the grandfather clause found in sections 104 and. 502 of the 1976 UBC, or by general tort principles extending liability only to foreseeableactions.

11. ADMISSIBILITYOF EXPERT TESTIMONY Appellants argue that the District Court erred in refusing to allow John Todd, the assistant fire chief for the City 

### of Helena fire department.at the time of the Spectrumfire, and Lewis Thorne, City Building Inspector at the time the fire, offer their expert opinions trial. The court prevented both from giving an expert opinion because they were disclosed only as lay witnesses and not as experts prior to trial. Appellants argue that the City knew the field of expertise of each, and thus it would not have been surprised by the testimony of either. Appellants contend that the exclusion of their expert opinions amounted to a hyper-technical ruling contrary to the holding in Ostermiller

v. Alvord (Mont.1986), 720 P.2d 1198, 43 St.Rep. 1180. At the outset,we note that the District Court has the discretion to rule on the admissibility of evidence, and we will not reverse the court unless the ruling amounts to an abuse of discretion. Cooper v. Rosston (Mont. 1988), 756 P.2d 1125, 1127, 45 St.Rep. 978, 981;Rule 104,M.R.Evid. 

### We hold that the District Court did not abuse its discretion when it excluded the expert opinions of Todc! and Thorne. Rule 

### 26(e) (1) and (2)

## , M.R.ci~7.p. requires partles i:o 

### list all experts they expect to call at trial. (I) 

### A party is under a duty seasonably to supplement his response with respect. to any question directly addressed to



# . . . (B) the identity of each person expected to he called as an expert witness at trial, the subjectmatter on which he is expected to testify, and the suhstance of his testimony. (2) A party is under a duty seasonably to amend. 

### a prior response if he obtains information upon thebasis of which

# ... (B) he knows that the response though correct when made is no longer true and the circumstancesare such that a failure to amend the response is in suhstance a knowinq concealment.This rule serves to minimize the element of unfair surprise, thereby encouraging a trial on the merits. Consequently, when no surprise arises from a violation of this rule, thi.s Courthas viewed theviolation as hyper-technical and allowed the previously undisclosed lay or expertwitness to testify. See, Ostermiller, 720 P.2d st 1201; Earrett v. Asarco, Inc.

(Mont. 1988), P.2d. 

## , 45 St.Rep. 1865. For example, in Ostermiller, the Court allowed the defense to elicit expert testimony from a physician even though the physicja.n
was listed in interrogatory answers on1.yas a lay witness, and not as an expert. The Court concluded that no surprise would result from admission of this testimony for the following reasons: The pretrial order and interrogatory

answers had listed the physician as a witness; both parties had deposed him prior to trial; and plaintiff had failed to
even alleqe any surprise. 

### - Id. at 1201. The facts in Ostermiller are significantly different from those in the present case. In response to a continuing interrogatory request for the names of all expert witnesses that Massman would call at trial, Massman stated that they had "no proposed expert witness identified." Appellants did list Todd and Thorne as lay witnesses, but they failed to amend this earlier interrogatory response to list the two as expertwitnesses. Moreover,neitherparty had deposed either proposed expert. Consequently, the City objected when appellants then attempted to elicit an opinion from Todd as to the ultimate effect of the firefighting methods employed 

### by the City upon the containment of the Spectrum ~ui1di.n~ fire. The City has claimed complete surprise. Given the facts in this case,we hold the ~istrict Court did not abuse itsdiscretion when it excluded the proposed expert testimony of Todd.Appellants also contend the opinion testimony asked of Todd was properly admissib1.eas a lay witness opinion. Rule 701, M.R.Evid., allows for the admission of a lay witmess opinion that is: (a) rationally hased on the perception of the witness and (b) helpful to a clear understanding of his testimony 

### or the determination of a fact in issue. Todd's proposed testimony as to the ultimate effect of the firefighting meth0d.s on the cont.ainmentof the Spectrum firewas not based on such personal perceptions. Rather, his opini.on,about the most effectivemethods for combating such



### a fire, was based on that special.ized,technical knowledge obtained fromhis fire training and work 

### as an assistant fire chief. As such, the substanceof his opinion constituted an expert opinion rather then a 

### laywitness opinion. An expert opinion generally is one "not within the range of ordinary training or intelligence." See generally,Kelley v. John F. Daily Co., (1919), 56 Mont. 63, 79, 181 P. 326, 331

(construing Section 7887(9) of the 1907 ~evisedCodes of Montana, which was the forerunner of the present statutory rule on expert testi.mony,Rule 702,M.R.~vid.). The ~istrict Court thus committed no error when it precluded admission of this expert opinion testimony an$. advised appellantstc limit their questions to those requiring an answer base6 on personalperceptions. Appellants did not seek an expert opinion from Thorne during t.rial because of an alleged ruling by the ~istrict Court in advance of trial that any such t.estimonywould not be admissible. No record, however, exists of this ruling. This Court will only t-akenotice of those court rulings attested to by the record or agreed upon by both parties. We ~3'11 not assume the truth of a contested statement about 

### anallegedly unrecorded prior court order; such a statement would constitute hearsay. See Rule 801Ic), M.R.Evid. Proceduresexistunder Rule 9(d)or (e)

## ,M.R.App.P. whereby a party may bring such evidence, which is not a part of the record, to the attentionof this Court. Appellants failed to follow this procedure,andwewill.not now consider the issue ofwhether the ~istrict Court erred inprecluding Thorne from testifying as an expert at trial-,an issue predicated upon
our consideration of an unrecorded ruling and objection.

111. ADflISSIBILITY OF REBUTTAL TESTIMONY Appellants contend that the District Court erred in refusing to allow a retired Billings firefighter, Melvin LaMotte, togive his expert opinion during rebuttal as to the alleged negligent firefighting by the City on the Spectrum fire. The court precluded the admission of such testimony because appellants failed to 6isclose JJaMotteas an expert witness prior to trial. 

### The law does not require the advance disc]-osure of rebuttalwitnesses. ~ilson v. Swanson (1976),169Mont. 328, 546 P.2d 990. Such previously undisclosed rebuttal witnesses, however, may offer testimony only about "that which tends to counteract newmatter offered by the adverse party.

### " Gustafson

### v. N. Pac. Ry. Co. /1960),137Mont. 154, 164, 351 P.2d 212, 217. F determination ofwhether proposed testimony is admissible as rebuttal testimony in any given

case is within the sound discretion of the District Court, and we will not reverse the DistrictCourt's ruling unless it abused this discretion. Spurgeon v. Imperial El-evatorCo.

(1935),99Nont. 432,438, 43 P.?d 891, 893. 

### We hold that the District Court did not abuse its discretion when it excluded the rebuttal testimony ofLaMotte. LaMottelsproposed t.estimonyrelated to the issue of whether the City negligently fought the Spectrum fire. This issuewasnot a newmatter raised by the defense; itwas
one of the main issues raised by appellants in their ccmpl-aint 

# . Appellants had the burden of proving the allegations in their complaint during their case-in-chief. Appe1lant.s attempted,but failed,tomeet thisburden through the expert testimony of Todd. (TheDistrict Court.properly excluded Tod-d's proposed expert testi-mony because of appellants' failure to disclose him as an expert witness prior to trial.) ~avingfailed to meet this burden durinq their case-in-chief, appellants could not then assert that the City's all-egednegligent firefightingwas a "newmatter" first raised by the defense and thereafter introduce expert t.esti.monyon this issue upon rebuttal. The ~istrict Court properly prevented any unfair surprise by excluding the expert testimony of LaMotte.

IV. INTERJECTIONOF INSURANCEAT TRIAL. Appel-lantscontend they were prejudiced by the City's alleged mention of insurance on five different occasions during trial. They argue this improper mention of insurance constituted reversible errorwarranting a new trial. The interjection of liability insurance coverage or noncoverage generally is prohibited at law. Rule 411., M.R.Evid., states: Evidence that a person was or was not insured against liability is not admissible upon the issue whether he acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against li-abi lity when offered for anotherpurpose, such asproof of agency,ownership, or control, or bias or prejudice of a witness.
The District Court.is charged with determining if any given mention of liability insurance is sufficiently prejudicial to warrant a new trial. Doheny v. Coverdale (1937)

## , 104 Mont. 534, 555, 68 P.2d 142, 148. 

### his determinati-ondepends upon the circumstances and manner in which the subject of insurance 

### is brouqht into the case. See, e.q.

### , D'Hooqe T~. McCann (1968), 151 Mont. 353, 360, 443 P.2d 747, 751. We will not disturb a District Court's determination unless the court abused itsdiscretion in so ruling. In the present case, we hold that the evidence failed to show that theDi-strictCourt abused its discretion when it denied appellants'post-trial motion for a new trial becau~e 

### of the alleged interjectionof insurance into the case. The first. claim of an improper mention of insurance occurred during the cross-examination of Todd. The City7 questioned whether Todd was told:



# ..

# . that there was a conflict of interest in yourbeing someoneperforming inspections for the city, and going out and soliciting insurance for people thatyou were looking at their homes or bulldings

# ..

# . Thisquestionwas asked to demonstrateTod.dls general lack of judgment and thereby, to undermine his credibility as a witness. As such, it fallswithin the exception to the Rule prohibiting the introduction of evidence of liability insurance. See Rule 411, M.R.Evid. Further, the question only highlights the conflict of interest arising when one sells insurance and then inspects some of those same insured buildings; it does not specifythat the Spectrum ~uilding wasone of those insured buildings. 'Thisgeneral questionwould be insufficient toprejudice the appellants. Appellants' second claim is that respondent improperly raised the issue of insurancewhile cross-examining the owner of the Horsky Block ~uildinq. The City asked the follotring question: 

### Q. And on the real. estate, you have stipulated your uncompensated loss was $60,000? Appellant immediately approached the bench and objected before the owner of the Horsky Block ~uildingcould answer this question indirectly relating to insurance coverage. This question did not directly ask whether the owner was covered by insurance, and no evidence was introduced to indicate that any jurymember understood from it thatMassman had liability insurance. Questioning proceeded without any other allusion to insurance. within the total framework of the trial,wehold that the District.Court also 3.i.dnot abuse its discretion by holding that this single question alludinq to insurancewas insufficienttowarrant a new trial. Appellants' third claim of the improper mention of insurance is totally withoutmerit. We will not discuss it, except to state that appellantobjected before any portion of John Carroll's deposition naming the insurance company involved in the Spectrum fire could be read to the jury. Appellants' fourth claim is that several jury members saw the coverpage of Todd's final investigative report which listed all the City's insurance and which was placed on respondent's counsel table within view of the jury after it

was excluded from introduction into evidence. No evidence exists t-hatany jury member in fact saw this cover sheetprior to it being removed from respondent's counsel table by counsel for appell.ants

# . Finally, appellants claim that the City mentioned insurance during closing argument. 

### No record exists of the closing argument in this case. For the reasons previously stated in section II above,we will not consider this fifth claim which is based upon a nonexistent record. Finding no abuse of discretion,we affirm the DistrictCourt's denial of

a new trial. The jury verdict and judgment of the ~istrict Court is affirmed. 

## /

We concur: 

## "'

JuCge of the DistrictCourt., sitting forMr. Justice 

### John Cnnway Harrison