No. 91-481 

IN THE SUPREm COURT OF THE STATE OF MONTANA 

1992 

WAYNE K. RIEGER, 

Plaintiff and Appellant, 

WALTER COLDWELL, d/b/a 

COLDWELL ELECTRIC, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Sixteenth Judicial District, 

In and for the County of Fallon, 

The Honorable Joe L. Hegel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Calvin J. Stacey, Reefer, Roybal, Stacey & Walen, 

Billings, Montana; HankD. Buelow, Attorney at Law, 

Miles City, Montana 

For Respondent: 

Randall G. Nelson and Michael K- Rapkoch, Felt, 

Martin, Frazier & Lovas, Billings, Montana 

Submitted on Briefs: March 12, 1992 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

plaintiff Wayne ~ieger appeals from the judgment entered in 

the District Court of the Sixteenth Judicial District, Fallon 

county, in favor of defendant Walter Coldwell. We reverse. 

Rieger raises a number of issues on appeal. However, the 

following issues are dispositive: 

1. Was defense counsel's demonstration in front of the jury 

during closing argument improper and prejudicial? 

2. Did the District Court err when it excluded evidence of 

work done by the defendant subsequent to plaintiff's accident? 

3. Should third persons who are not parties be included on 

the verdict form, pursuant to § 27-1-703, MCA (1985)? 

On October 27, 1986, Walter Rieger was injured at his place of 

employment when one end of a series of three fluorescent light 

fixtures dropped from the ceiling and struck him on the back of the 

head and neck. As a result, there was evidence that Rieger 

sustained injuries to his neck. 

The light fixtures had been attached to the sheetrock ceiling 

by means of a "toggle bolt," a device that expands after being 

inserted into an opening. The light fixtures had been installed by 

Coldwell Electric in 1984. 

John Heim, the owner of the building, was informed of the 

accident shortly after it happened. He alerted Coldwell Electric, 

and Walter Coldwell and his son came to the building that same day 

and made repairs to the fallen light, and to other lights in the 
building. Coldwell employees used larger toggle bolts for their 

repairs and used more toggle bolts for each fixture. 

On May 12, 1989, Rieger filed suit against Walter Coldwell, 

d/b/a Coldwell Electric, and John Heim, seeking compensatory 

damages. Prior to trial, Rieger entered into a compromise 

settlement with Heim, who was then dismissed from the suit. On 

April 16, 1991, the jury trial commenced, and the jury returned a 

verdict in favor of Coldwell on April 19. Notice of entry of 

judgment was entered on April 24. Several post-trial motions were 

made by Rieger, including a motion for new trial, or alternatively, 

judgment notwithstanding the verdict, all of which were denied 

pursuant to Rule 59(d), M.R.Civ.P. From this judgment and the 

District Court's post-trial orders, Rieger appeals. 

Prior to trial, plaintiff's counsel made a motion in limine to 

preclude the jury from handling the sheetrock samples. He was 

concerned that the jury would be tempted to perform experiments on 

it. Defense counsel stipulated that the material would not be 

given to the jurors. 

Rieger contends that defense counsel, in violation of that 

stipulation, performed a demonstration during closing arguments 

that was highly prejudicial. Counsel for Coldwell reached into an 

exhibit box containing broken portions of sheetrock from the 

ceiling that had been used for testing purposes, and produced one 

of the pieces. Handling the material, defense counsel stated: 

Now they're telling you that their expert told you that 

there's nothing wrong with that sheetrock up there. 
Nothing wrong with that sheetrock. And I tell you 

folks -- 

During that statement, counsel crushed the piece of sheetrock in 

his hand into a powder. Plaintiff's objection to the demonstration 

was sustained, and the jury was told to disregard what they had 

seen. 

In WiIliams v. State (Ga. l985), 330 S.E. 2d 353, the Georgia 

Supreme Court was faced with a similar issue. During a 

prosecutor's closing arguments, he had a 100-pound assistant 

district attorney point the victim's pistol at a wall and pull the 

trigger. The prosecutor, demonstrating that a small person could 

easily pull the trigger of the gun in question, sought to challenge 

the defendant's contention that the trigger was extremely difficult 

to pull. The court determined that this action constituted 

introduction of new evidence during the closing arguments which 

could not be rebutted, and reversed the judgment. 

Counsel's demonstration during closing showing the friability 

of the sheetrock likewise constituted introduction of new evidence. 

Coldwell had ample opportunity during trial to introduce evidence 

of the sheetrock's alleged defect. In addition, the demonstration 

used sheetrock which had been taken down from the ceiling some four 

years after the accident, had been broken up into many pieces, and 

had been transported about the country for testing purposes. There 

was no testimony that a similar force was exerted upon the 

sheetrock, and that it caused the accident to happen. Without a 

clear showing that the conditions under which the experiment was 
performed were substantially similar to the actual occurrence, and 

that the experiment assisted the jury in more intelligently 

considering the issue, there was a clear possibility of prejudice. 

Bamteyerv.MontanaPowerCo. (1983), 202 Mont. 185, 657 P.2d 594. This 

Court held in Kuhnkev. Fkher (1984), 210 Mont. 114, 126, 683 P.2d 

916, 922, that there is no way to measure how a prejudicial 

argument may affect an adverse party. We stated that "[tlhe only 

way to be sure which, if any, of the defendants should be 

exonerated or whether plaintiff should recover at all is to grant 

a new trial." We so hold that for these reasons the plaintiff in 

this case is entitled to a new trial. 

Rieger also contends that the District Court erroneously 

excluded evidence of the defendant's activities at plaintiff's job 

site when he came to repair the fallen fixture. Shortly after the 

accident, the fallen light fixture was reattached, and other 

fixtures in the building were inspected, with additional toggle 

bolts added to several. Prior to trial, the court declined to 

grant Coldwell's motion in limine to preclude any evidence 

regarding repairs to the fallen light, but did grant the motion as 

to repairs made on other light fixtures in the building, stating: 

With respect of Defendant's Motion in Limine, the 

court determines that Plaintiff may examine or 

cross-examine persons with relevant knowledge regarding 

Coldwell Electric's inspection and subsequent repair of 

the light fixture in question . . . and the feasibility 

of other methods of installing the light fixtures. 

Although Defendant has offered to stipulate that it would 

have been feasible to install more and/or larger togglebolts, Defendant is expected to argue that the cause of 

the falling light fixture was damp, defective sheetrock. 
This tends to controvert the "feasibility" of using more 

and/or larger toggle-bolts in that llfeasibilityst implies 

more than the possibility of installing more and/or 

larger toggle-bolts. It also implies use of such 

toggle-bolts would have prevented the light from falling. 

The parties shall submit proposed cautionary instructions 

regarding the purpose for which such testimony may be 

used. 

However, plaintiff is prohibited from inquiring 

regarding the repair of the other lights, unless, after 

side-bar conference, it appears that the relevance of the 

evidence outweighs its prejudicial effect under Rule 403, 

M.R.Evid. 

The court apparently based its partial acceptance of evidence 

of repair on Rule 407, M.R.Evid. While Rule 407 bars evidence of 

subsequent remedial measures, evidence "offered for another 

purpose, such as proving ownership, control, or feasibility of 

precautionary meas~res~~ need not be excluded. The court stated 

that feasibility was at issue. However, the court based its 

refusal to admit other evidence upon a different evidentiary rule, 

Rule 403, M.R.Evid. Rule 403 states: 

Although relevant, evidence may be excluded if its 

probative value is substantially outweighed by the danger 

of unfair prejudice, confusion of the issues, or 

misleading the jury, or by considerations of undue delay, 

waste of time, or needless presentation of cumulative 

evidence. 

Rieger contends that the court erred in its refusal to allow 

evidence of repairs to other light fixtures, particularly in light 

of the testimony of Coldwell's expert witness that other sheetrock 

in the building appeared to be much stronger than that found where 

the accident took place. We agree with plaintiff. In light of the 

expert testimony that the sheetrock at the accident scene was 

defective, Rieger should have been allowed to offer evidence that 
other light fixtures were loose and were subsequently repaired. 

Such evidence was probative, and tended to refute the expert 

testimony that the sheetrock at the accident scene was defective 

and was the sole cause of the accident. Runkle v. Burlington Northern 

(1980), 188 Mont. 286, 613 P.2d 982. Upon retrial, Rieger should 

be allowed to present evidence of the repairs to rebut any 

contention of defective sheetrock. 

Rieger contends that it was error to include the building 

owner, John Heim, and the manufacturer of the sheetrock, who were 

not parties to the action, in the verdict form. We agree. 

Prior to its amendment in 1987, § 27-1-703, MCA (1985), 

provided that a tort-feasor is jointly and severably liable. The 

only issues for the jury to consider were the defendant's 

negligence and whether that negligence contributed as a cause of 

plaintiff's damages. The inclusion of a settling party or other 

third party in the verdict form would serve no relevant purpose in 

the determination of these issues. The plaintiff's recovery, if 

any, may be diminished by a credit based on the amount of 

consideration paid by the settling joint tort-feasor, upon 

post-trial motion by the defendant. Azure v. City of Billings (1979), 182 

Mont. 234, 244-45, 596 P.2d 460, 466. We hold that it was 

reversible error to include nonparties in the verdict form. 

Finally, we address the defendant's post-trial use of juror 

affidavits attempting to show that the jurors were not influenced 

by mention of the Heim settlement or the courtroom demonstration. 
In Rasmussenv. Sibert (l969), 153 Mont. 286, 293, 456 P.2d 835, 839, we 

held that the use of juror affidavits is confined exclusively to 

cases of misconduct of the jury under 5 25-11-102 (2) , MCA. The use 

of juror affidavits in this case was inappropriate and should not 

have been permitted by the District Court. Nor should future 

parties submit juror affidavits for this purpose. 

Accordingly, we reverse the District Court and remand for new 

trial. 

/ 

We concur: