No. 94-614

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

RAYMOND LOMBARDO,

Plaintiff and Respondent,

v.

TOM HEISLER d/b/a THE LOADING ZONE

BAR and THE PLAYGROUND, INC.,

Defendants and Appellants.

APPEAL FROM: District Court of the Eighth Judicial District,

In and for the County of Cascade,

The Honorable John McCarvel, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Robert J. Emmons, Emmons & Sullivan, Great Falls,

Montana

For Respondent:

Joseph C. Engelr III, Great Falls, Montana
Justice William E. Hunt, Sr., delivered the Opinion of the Court.

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court

1995 Internal Operating Rules, the following decision shall not be

cited as precedent and shall be published by its filing as a public

document with the Clerk of this Court and by a report of its result

to State Reporter Publishing Company and West Publishing Company,

Appellant and defendant, Tom Heisler (Heisler), appeals from

a jury verdict awarding petitioner, Raymond Lombardo, $160,000 in

damages, reduced to $80,000 on a finding of petitioner's 50%

negligence. Heisler appeals the denial of his motion for a

judgment N.O.V. and jury instructions given by the District Court.

We affirm.

We address the following dispositive issues on appeal:

1. Did the District Court err in denying Heisler's motion for

judgment N.O.V?

2. Did the District Court err in giving court's instruction

No. 8, concerning premises safety?

3. Did the District Court err in refusing Heisler's proposed

instructions No. 3, regarding the "clean hands" doctrine, and

instructions 4, 5, 7, and 14, regarding supervening and intervening

causes?

FACTS

On March 16, 1991, Raymond Lombard0 (Lombard01 and Robert

Mattern (Mattern) were both at the "Loading Zone," a bar in Great

Falls, Montana. Around closing time, they engaged in a yelling

match because Mattern knocked the beer Lombard0 had just purchased

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from his hands. The two were separated and escorted out of the bar

by the "Loading Zone's bouncers. Lombard0 testified the bouncers

encouraged the two to take it across the street. About the same

time these acts occurred, a police officer drove down the alley.

The officer asked if there was a problem, and one of the bouncers

told the officer that everything was fine.

Lombard0 then walked over to the neighboring bar, "The

Playground" to pick up his friend, Andy Krueger who was in a wheel

chair. As Lombard0 was loading Krueger's wheel chair into the car,

Mattern attacked Lombard0 with a knife, stabbing him eleven times.

Lombard0 brought this negligence action to recover damages

from the owner of the "Loading Zone" bar and "The Playground" bar.

Lombard0 contended Heisler was negligent in failing to provide

premises safety in "The Playground" parking lot. A jury trial was

held in August of 1994. The jury found Heisler to be 50%

negligent, and Lombard0 to be 50% negligent. The jury then found

Lombard0 had sustained $160,000 in damages. Judgment was entered

on September 15, 1994, awarding Lombard0 $80,000 in damages.

Heisler appeals.

ISSUE 1

Did the District Court err in denying Heisler's motion for

judgment N.O.V?

When reviewing a motion for a judgment notwithstanding the

verdict (N.O.V.) the District Court must consider evidence in the

light most favorable to the opposing party and decide whether

substantial credible evidence supports the jury verdict. Knaper,

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Wolfberg & Associates, Inc. v. Blue Cross and Blue Shield of

Montana (19951, 270 Mont. 283, 285, 891 P.Zd 530, 532. The

standard we use when reviewing the District Court's denial of a

motion for judgment N.O.V. is whether substantial credible evidence

supported submission to the jury. Knauer, 891 P.2d at 532.

In this case, we must decide whether a jury issue was created

after reviewing the evidence in the light most favorable to

Lombardo. See Jaques v. Montana National Guard (1982), 199 Mont.

493, 503, 649 P.2d 1319, 1325. We have held before that we will

exercise great restraint in interfering with the constitutionally

mandated process of a jury decision. See Barmeyer v. Montana Power

Company (1983), 202 Mont. 185, 191, 657 P.2d 594, 597 (overruled on

other grounds, citing Jauues, 649 P.2d 1319).

In this case, Heisler contends a judgment N.O.V. is

appropriate for two reasons. First, Heisler contends Lombard0 left

"The Playground" parking area and later returned without Heisler's

knowledge to fight with Mattern. Second, Heisler proposes the

evidence supports a finding that Lombardo's negligence was at least

51% or more than any negligence on his part.

Upon review of the record, we conclude that the evidence

presented at trial created a jury issue in regards to Heisler's

negligence. On appeal, Heisler has merely reargued his case. In

doing so he invades the province of the jury; "A jury may believe

the testimony of one witness and disbelieve that of another, or any

numbers of others, and the determination of the jury in this regard

is final. . . .I' Batchoff v. Craney (1946), 119 Mont. 157, 161,

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172 P.2d 308, 311; Buhr on behalf of Lloyd v. Flathead County

(1994), 268 Mont. 223, 886 P.2d 381.

Therefore, since there was sufficient credible evidence to

support submission of the case to the jury, we hold that the

District Court's denial of Heisler's motion for judgment N.O.V.

should be affirmed.

ISSUE 2

Did the District Court properly instruct the jury in giving

court's instruction No. 8, concerning premises safety?

It is within the District Court's discretion to decide how to

instruct the jury, and we will not overturn the District Court

except for abuse of discretion. Contreras v. Vannoy Heating & Air

Cond. (19951, 270 Mont. 393, 400, 892 P.2d 557, 561-62 (citing Hall

v. Big Sky Lumber & Supply, Inc. (1993), 261 Mont. 328, 863 P.2d

389).

Heisler contends instruction No. 8 should have been refused.

The court's instruction read as follows:

In determining whether premises were reasonably safe, you

should consider all of the surrounding circumstances

shown by the evidence including, but not limited to, the

following matters:

1. the manner in which the property is used;

2. the setting, location and physical

characteristics of the property;

3. the type of person who would reasonably be

expected to visit the premises; and

4. the specific type of hazard or unsafe condition

alleged.

Heisler argues this instruction concerns physical properties of the

premises. He argues that because the patron's behavior was the

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issue and not the physical characteristics of "The Playground" the

instruction was in error.

We do not agree. Instruction No. 8 is an appropriate

instruction regarding premises safety. See Davis v. L.D.S. Church

(lPPO), 244 Mont. 61, 71, 796 P.2d 181, 187; Limberhand v. Big

Ditch Co. (1985), 218 Mont. 132, 706 P.2d 491. Heisler is correct

that the instruction does not specifically mention the "physical

behavior" of the patrons; however, the instruction is not

restricted to the listed factors. The instruction tells the jury

that they II. . . should consider all of the surrounding

circumstances shown by the evidence, including but not limited to,

the following matters: the manner in which the property is used;

setting, location and physical characteristics of the property; the

type of person who would reasonably be expected to visit the

premises; and the specific type of hazard or unsafe condition

alleged." This instruction adequately instructs the jury that the

patron's behavior can be considered by a jury.

We conclude there was not abuse of discretion, and we

therefore affirm the District Court's giving of instruction No. 8.

ISSUE 3

Did the District Court properly instruct the jury by refusing

Heisler's proposed instructions No. 3, concerning the "clean hands"

doctrine, and also in refusing instructions 4, 5, 7, and 14,

regarding supervening and intervening causes?

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Again, it is within the District Court's discretion to decide

how to instruct the jury, and we will not overturn the District

Court except for abuse of discretion. Contreras, 892 P.2d at 558.

When examining whether jury instructions were properly given or

refused, we must consider the jury instructions in their entirety

and in connection with the other instructions given and the

evidence introduced at trial. Feller v. Fox (19891, 237 Mont. 150,

156, 772 P.2d 842, 846.

Looking first at Heisler's proposed instruction No. 3, which

read as follows:

If you find from the evidence that the dispute between

the Plaintiff, Raymond Lombard0 and Robert Mattern arose

out of an illegal transaction between them involving

drugs, then you are instructed to return a verdict for

the Defendant Tom Heisler. The reason for this is that

no one can take advantage of his own wrong.

At trial, Heisler introduced evidence suggesting the fight between

the two patrons was a dispute over a drug deal. Therefore, Heisler

argues, if the two were fighting over an illegal drug transaction

the "clean hands" doctrine or the in oari delict0 doctrine bars

Lombardo's recovery and the jury should have been instructed

accordingly.

The "clean hands" doctrine and b & delict0 are both

equitable remedies. Both doctrines operate on the theory that

there is no recourse between wrongdoers. See Lencioni v. Long

(1961), 139 Mont. 135, 361 P.2d 455; Wailer v. Engelke (1987), 227

Mont. 470, 741 P.2d 385; Patten v. Raddatz (1995), 271 Mont. 276,

895 P.2d 633. In uari delict0 is a term denoting the "status of

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both parties to an illegal agreement or transaction where they are

equally at fault." Ballentine's Law Dictionarv 631 3rd Ed.

(1969).

But, we need not consider either doctrine. Lombard0 is not

seeking recovery against Mattern, he is seeking recovery against

Heisler for Heisler's negligence. Lombard0 and Mattern both deny

the fight was over a drug deal, and no evidence was introduced that

the two, who had several verbal exchanges over the course of the

evening, ever mentioned drugs. A District Court should only

instruct on the theories and issues which are supported by the

evidence presented at trial. State v. Popescu (19891, 237 Mont.

493, 495, 774 P.2d 395, 396.

Upon reviewing the instructions as a whole, even if the jury

chose to believe Heisler's contention that the dispute was over an

illegal drug transaction, Lombard0 is at most contributorily

negligent and the jury was appropriately instructed on this issue.

We conclude that the defense theory was sufficiently accommodated

by the court's instructions. Therefore we affirm the District

Court's denial of defense instruction No. 3.

In Heisler's last argument, he contends the District Court

erred in refusing Heisler's proposed instructions Nos. 4, 5, 7, and

14. Heisler alleges he did not owe a duty to Lombard0 if Mattern's

conduct could be considered an independent and intervening act.

The District Court in this case gave its own instructions on

independent and intervening causes, which read as follows:

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NO. 16: Only if the intervening cause is reasonably

unforeseeable will it be considered a superseding event

that breaks the chain of causation.

No. 17: A defendant's liability for his wrongful acts

will not be severed by an intervening cause if the

intervening cause is one that the defendant might

reasonably foresee as probable or one that the defendant

might reasonably anticipate under the circumstances.

No. 18: A superseding, intervening event is an

unforeseeable event that occurs after the defendant's

original act of negligence.

Heisler argues the instructions where "abstract" and did not

provide the proper guidance for the jury.

"If the jury can readily relate the concept of the instruction

to the facts and there is no prejudicial effect created by the

instruction, the use of such an instruction is not reversible

error. I' State v. Reiner (1978), 179 Mont. 239, 246, 567 P.2d 950,

955. Again, we conclude the instructions given state the

appropriate law, and we therefore affirm the District Court's

denial of Heisler's instructions Nos. 4, 5, 7, and 14.

Affirmed.

We Concur:

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Justice Karla M. Gray, specially concurring.

I concur in the Court's opinion on issues one and three and,

therefore, specially concur in the result the Court reaches. I do

so notwithstanding my disagreement with the Court's resolution of

issue two, regarding the "premises safety" instruction, because the

jury's verdict on the negligence claim against Heisler is properly

affirmed via issues one and three.

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