IF: THE SUPREME COIJRT OF TFE STATE OF MONTANA 

HUBERT J. MASSMAN, d/b/a HORSKY BLOCK, 

HUBERT J. MASSMAN, d/b/a MASSMAM LAW 

FIRM, MILLER ENTERPRISES, INC., a 

Montana corporation, and EPISCOPAL 

DIOCESE OF MONTANA, a corporation, 

Plaintiffs and Appellants, 

-vsCITY OF HEI,ENA, a Municipal Corporati on, 

Defendant and Respondent. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Mark P, Sullivan, Zudge presidina. 

COUNSEL OF 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 , . 

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. . <?' ,... - -- -- 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 Judicial District 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 the building. 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 is negligence per se? 

?. Did the District Court err- jn refusing to allow 

plairltiffs to ask opinion testimony of two people disclosedl 

as witnesses but not as experts? 

3. Did the District Court 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 

repezted mention of insurance during 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 

fire by the Public Duty Doctrine? 

2. Is the City exempted from any liabilitlr for the 

Lire by the grandfather clause in 5 502 of the UBC? 

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 the basement 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 Spectrum Building 

was being remocleled by its owner, Ben Brown. 

The initial building permit obtained by Brown on May 

3- , 1979 authorized him to make 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 1976 URC, required an operational sprinkler 

sl-stem in the basements of remodeled buildings having a 

changed occupational charscter the same or more hazardous 

than the prior 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 Bui 1din.q. This temporary 

certificate of occupancy was issued prior 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-ed but it had not 

been connected to the sprinkler hea.ds. 

The fire was called in at 9:51 p.m. on June 17, 1980. 

Firef igllters 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 the basement. However, a sheet rocked partition ha?. 

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 spread upwards 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.tion blocking 

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 District Court 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 issue of the duty owed tc plaintiffs. 

A jury trial began on December 14, 1987. The jury 

returned a verdict 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 ORDINANCE AS NEGLIGENCE PER SE 

Appellanl-.s contend that their damages resulted 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 negligence per 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 the URC. 

UBC requirements mandate the installati on and 

naintenance cf an operational, standard automatic fireextinguishing system jn the basement, and on every story, cf 

a31 buil2ings such as the Spectru~ Building which 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 shall be installed and maintained 

in operable condition . . . [iln every 

story, basement or cellar of all 

buildings except Groups R, Division 3 and 

M Occupancies when floor area exceeds 

1500 square feet and there is not 

provided at least 20 square feet oi 

opening entirely above the ad joining 

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 require the 

operation of 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-lding had not been 

completed at the time 05 the fire on June 17, 1980. bTo final 
inspection 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 for business. 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 

entire building. The UBC does not require the building to be 

in compliance with UAC requirements prior 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 raised by 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 foreseeable actions. 

11. ADMISSIBILITY OF 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 Spectrum 
fire, 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 subject matter 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 the basis of which . . . (B) he knows that the response though 

correct when made is no longer true and 

the circumstances are 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 

Court has viewed the violation as hyper-technical and allowed 

the previously undisclosed lay or expert witness 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 physicj a.n 

was listed in interrogatory answers on1.y as 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 

expert witnesses. Moreover, neither party 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 

its discretion when it excluded the proposed expert testimony 

of Todd. 
Appellants also contend the opinion testimony asked of 

Todd was properly admissib1.e as 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.ainment of the Spectrum 

fire was not based on such personal perceptions. Rather, his 

opini.on, about the most effective methods for combating such 

a fire, was based on that special.ized, technical knowledge 

obtained from his fire training and work as an assistant fire 

chief. As such, the substance of his opinion constituted an 

expert opinion rather then a lay witness 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 ~evised Codes 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 appellants tc limit 

their questions to those requiring an answer base6 on 

personal perceptions. 

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.estimony would not 

be admissible. No record, however, exists of this ruling. 

This Court will only t-ake notice 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 an 
allegedly unrecorded prior court order; such a statement 

would constitute hearsay. See Rule 801Ic), M.R.Evid. 

Procedures exist under 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 attention of this Court. Appellants failed to 

follow this procedure, and we will. not now consider the issue 

of whether the ~istrict Court erred in precluding 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, to give 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 JJaMotte as an expert 

witness prior to trial. 

The law does not require the advance disc]-osure of 

rebuttal witnesses. ~ilson v. Swanson (1976), 169 Mont. 328, 

546 P.2d 990. Such previously undisclosed rebuttal 

witnesses, however, may offer testimony only about "that 

which tends to counteract new matter offered by the adverse 

party. " Gustafson v. N. Pac. Ry. Co. /1960), 137 Mont. 154, 

164, 351 P.2d 212, 217. F determination of whether 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 District Court's ruling unless it 

abused this discretion. Spurgeon v. Imperial El-evator Co. 

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

We hold that the District Court did not abuse its 

discretion when it excluded the rebuttal testimony of 
LaMotte. LaMottels proposed t.estimony related to the issue 

of whether the City negligently fought the Spectrum fire. 

This issue was not a new matter raised by the defense; it was 

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, to meet this burden through 

the expert testimony of Todd. (The District Court. properly 

excluded Tod-d 's proposed expert testi-mony because of 

appellants' failure to disclose him as an expert witness 

prior to trial.) ~aving failed to meet this burden durinq 

their case-in-chief, appellants could not then assert that 

the City' s all-eged negligent firef ighting was a "new matter" 

first raised by the defense and thereafter introduce expert 

t.esti.mony on this issue upon rebuttal. The ~istrict Court 

properly prevented any unfair surprise by excluding the 

expert testimony of LaMotte. 

IV. INTERJECTION OF INSURANCE AT TRIAL. 

Appel-lants contend 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 error warranting 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 

another purpose, such as proof 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-on depends 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 its discretion in so ruling. 

In the present case, we hold that the evidence failed 

to show that the Di-strict Court abused its discretion when it 

denied appellants' post-trial motion for a new trial becau~e 

of the alleged interjection of 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 your being someone performing 

inspections for the city, and going out 

and soliciting insurance for people thatyou were looking at their homes or 

bulldings . . . 

This question was asked to demonstrate Tod.dls general lack of 

judgment and thereby, to undermine his credibility as a 

witness. As such, it falls within 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 specify that the Spectrum ~uilding was 
one of those insured buildings. 'This general question would 

be insufficient to prejudice the appellants. 

Appellants' second claim is that respondent improperly 

raised the issue of insurance while 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 ~uilding could 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 jury member understood from it that Massman 

had liability insurance. Questioning proceeded without any 

other allusion to insurance. within the total framework of 

the trial, we hold that the District. Court also 3.i.d not abuse 

its discretion by holding that this single question alludinq 

to insurance was insufficient to warrant a new trial. 

Appellants' third claim of the improper mention of 

insurance is totally without merit. We will not discuss it, 

except to state that appellant objected 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 cover page 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-hat any jury member in fact saw this cover sheet 
prior 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 District Court's denial of 

a new trial. 

The jury verdict and judgment of the ~istrict Court is 

affirmed. / 

We concur: "' 

JuCge of the District Court., 

sitting for Mr. Justice 

John Cnnway Harrison