Albert v. City of Billings , 365 Mont. 454 ( 2012 )

July 24 2012
DA 11-0597
IN THE SUPREME COURT OF THE STATE OF MONTANA
2012 MT 159CHARLES EUGENE ALBERT,
Plaintiff and Appellant,
v.
CITY OF BILLINGS,
Defendant and Appellee.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DV 10-689
Honorable Gregory R. Todd, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Elizabeth J. Honaker, Honaker Law Firm, Billings, Montana
For Appellee:
Gerry Fagan, Moulton Bellingham PC, Billings, Montana
Submitted on Briefs: May 23, 2012
Decided: July 24, 2012
Filed:
__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 In July 2009, Charles Albert’s Billings, Montana home caught fire. Despite
response by the City of Billings Fire Department, the house burned to the ground.
Subsequently, Albert sued the City for negligence of the Billings Fire Department,
discrimination based upon age and disability, slander, and violation of his constitutional
and statutory right to know and obtain documents held by the City. The District Court
for the Thirteenth Judicial District granted the City’s motion for summary judgment on
all issues. Albert appealed. We affirm.
ISSUES
¶2 A restatement of the issues presented by Albert is:
¶3 Did the District Court err by granting the City of Billings’ motion for summary
judgment on Albert’s claim of slander?
¶4 Did the District Court err by granting the City of Billings’ motion for summary
judgment on Albert’s claim of negligence by the City firefighters?
¶5 Did the District Court err by granting the City of Billings’ motion for summary
judgment on Albert’s claim of discrimination?
¶6 Did the District Court err by granting the City of Billings’ motion for summary
judgment on Albert’s claim that he was denied his constitutional and statutory right to
know?
FACTUAL AND PROCEDURAL BACKGROUND
¶7 Albert is a 77-year-old man with a self-acknowledged history of mental illness.
Beginning in 1996, the City of Billings charged Albert with numerous violations of the
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Billings Montana City Code (Code) pertaining to the status and condition of his property.
The charges included dumping raw human waste into the dumpster behind his home and
feeding raw meat to numerous feral animals on his property. Between 2006 and spring
2009, Albert obtained at least two copies of his record of Code violations from the City.
¶8 When the fire broke out in July 2009, the Billings Fire Department responded.
Albert had suffered burns to his head and hands and was transported to the hospital. The
house was, and had been for many years, in very poor condition. The firefighters initially
entered the home but subsequently were instructed to fight the fire from outside because
the roof was sagging and unstable and the inside of the structure was extraordinarily
cluttered with materials fueling the fire, making it an even more dangerous house fire
than firefighters regularly encounter. The battalion commander, Brian McDermott,
described why he prohibited his firefighters from fighting the blaze from within: “The
structure integrity hindered our firefighting all the way along. At [one] stage, we’d been
there for hours with all the engine companies and still made no progress in getting to the
heart of the fire because of the amount of clutter . . . .” The firefighter explained that
finding the “heart” of the fire would allow them to more strategically attack the flames
and gain control.
¶9 Firefighters remained at the scene all night trying to pinpoint the heart of the fire.
Eventually, they determined they must wait for the fire to break through the roof to
employ a different firefighting strategy. However, when early the next morning the
flames finally broke through the roof, the fire, being fueled by substantial debris and
clutter in the attic, was too ferocious to control, and the house was completely consumed.
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¶10 Believing that the firefighters chose to let his home burn because the City
considered it a “blight,” Albert requested another copy of his Code enforcement record
because his earlier copy was destroyed in the fire. He asserts that he submitted a letter
requesting his file on August 28, 2009, but claims that the material he received was
“censored” or incomplete because the copy charges for the file were less than they had
been previously. He also believed he recalled a document that was not included in the
newly-obtained record. The City denied censoring the file and explained that the cost of
copying the file was less than Albert’s previous acquisition because the City copied the
file on both sides of the paper rather than on a single side as it had done earlier.
¶11 On February 17, 2010, Albert, with counsel, again requested his Code
enforcement records. They were told that his file had been transferred to the City
Attorney. Albert claims the City Attorney did not return his calls. On April 16, 2010,
Albert filed a pro se complaint in this action, and on June 14, he filed an amended
complaint. He alleged that the City (1) violated his constitutional and statutory right to
know by taking approximately four months to provide him with the requested Code
enforcement records; (2) was negligent in not properly fighting the fire on his property;
(3) violated the Montana Human Rights Act by discriminating against him on the basis of
age and disability; and (4) slandered him to the public.1 In June 2010, the City provided
Albert’s Code enforcement records via a document production. Again, the document
1
At different times in this proceeding, Albert claimed that the firefighters made statements to
“the public” that Albert was dangerous, that he may have started the fire, that he had no working
bathroom in his home, and that he wore a mask and goggles while sleeping as protection against
cockroaches in his home. The only allegedly slanderous statement raised on appeal is the last
statement.
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Albert believed would support his claim that the City was trying to get rid of his house
was not in the record.
¶12 On January 18, 2011, the City moved for summary judgment on all claims. The
District Court granted the motion. The court concluded that Albert’s Human Rights Act
and discrimination claims were “a repackaging of [his] negligent firefighting and public
records request claim.” The court determined that Albert failed to make a prima facie
case defeating summary judgment because he failed to present any facts that he “was
treated differently than anyone else who was a member of his protected class.”
Addressing Albert’s negligence claim, the District Court held that the public duty
doctrine precluded Albert’s negligence claim because the City firefighters owe a legal
duty to fight fires to the public at large, not to Albert individually. The court further
decided that Albert’s negligence claim required an expert witness who could address
firefighting tactics and strategy. Because Albert had not provided such an expert, his
negligence claim failed.
¶13 The District Court dismissed Albert’s slander claim on the grounds that there was
a general lack of evidence to support the claim. Additionally, the court found that
because the City’s statements were made in the proper discharge of an official duty or
within the scope of the official’s authority, such statements could not constitute slander.
Lastly, the court ruled that Albert’s public records/right to know claim was moot because
Albert ultimately obtained the records he wanted.
¶14 Albert appeals.
STANDARD OF REVIEW
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¶15 We review the grant of summary judgment de novo, using the same M. R. Civ. P.
56 criteria used by the district court. Summary judgment is appropriate when the moving
party demonstrates both the absence of any genuine issues of material fact and
entitlement to judgment as a matter of law. Styren Farms, Inc. v. Roos, 2011 MT 299,
¶ 10, 363 Mont. 41, 265 P.3d 1230.
DISCUSSION
¶16 Did the District Court err by granting the City of Billings’ motion for summary
judgment on Albert’s claim of slander?
¶17 On July 30, 2009, the Billings Gazette published an article reporting the fire and
destruction of Albert’s home. The article stated that Albert’s home had no toilet and that
Albert “reportedly” slept with goggles and a mask as protection against cockroaches.
This statement was not attributed by the Gazette to any of the fire or police officials. The
City’s answers to interrogatories indicated that one of the officials may have made the
statement, but there was no specific recollection. Albert argues that the statement
subjected “him to ridicule” and the District Court should have ruled “as a matter of law,
that the City’s statement would tend to disgrace and degrade Albert or cause him to be
shunned and avoided.”
¶18 Section 27-1-803, MCA, defines “slander” as “a false and unprivileged publication
other than libel that: (1) charges any person with crime or having been indicted,
convicted, or punished for crime; or (2) imputes in a person the present existence of an
infectious, contagious, or loathsome disease; (3) tends directly to injure a person in
respect to the person’s office, profession, trade, or business . . .; (4) imputes to a person
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impotence or want of chastity; or (5) by natural consequence causes actual damage.”
Applying this definition to Albert’s claim that firefighters told people that he slept with a
mask and goggles, the statement does not meet any of the statutory categories of
actionable slander. Moreover, as we noted in Wainman v. Bowler, 176 Mont. 91, 96, 576
P.2d 268, 271 (1978), “[i]t is not sufficient, standing alone, that the language is
unpleasant and annoys or irks him, and subjects him to jests or banter, so as to affect his
feelings.” We therefore affirm the District Court’s grant of summary judgment to the
City on this issue.
¶19 Did the District Court err by granting the City of Billings’ motion for summary
judgment on Albert’s claim of negligence by the City firefighters?
¶20 The District Court granted summary judgment on this issue on two independent
grounds: (1) Albert did not produce the necessary evidence to support his negligence
claim, and (2) the Public Duty Doctrine (PDD) precluded a claim of negligence against
the City’s firefighters.
¶21 On appeal, Albert maintains that the City’s firefighters negligently fought the fire
that ultimately consumed his home; therefore, he is entitled to damages. He challenges
several of the City’s firefighting decisions, such as when the firefighters applied water to
his home and how they used a fan to exhaust the smoke. The City counters that Albert’s
claim fails for want of an expert witness to address firefighting tactics. The firefighters
who testified before the District Court explained that various tactics are employed in
attacking a fire depending on the type of fire, the source of the fire, the condition of the
burning structure, and the material fueling the fire. The District Court determined that
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whether or not the firefighters should have dumped water on Albert’s
house, gone inside Albert’s house, or how they should have fought the fire
in general, cannot be resolved without expert testimony. Firefighting
techniques are beyond the common experience of the trier of fact. Expert
testimony will assist the trier of fact in determining liability for negligent
firefighting.
¶22 It is well-established that expert testimony is required to support a negligence
claim “when the issue presented is sufficiently beyond the common experience of the
trier of fact and the expert testimony will assist the trier of fact in determining the issue or
understanding the evidence.” Dayberry v. City of E. Helena, 2003 MT 321, ¶ 17, 318
Mont. 301, 80 P.3d 1218.
¶23 In Massman v. City of Helena, 237 Mont. 234, 773 P.2d 1206 (1989), we
addressed whether firefighting techniques or methods are sufficiently beyond the
common experience of the trier of fact. In Massman, though we were analyzing a
distinguishable issue, the Court observed that a
[firefighter’s] proposed testimony as to the ultimate effect of the
firefighting methods on the containment of the . . . fire was not based on . . .
personal perceptions. Rather, his opinion, about the most effective methods
for combating such a fire, was based on that specialized, technical
knowledge obtained from his fire training and work as an assistant fire
chief. . . . An expert opinion generally is one “not within the range of
ordinary training or intelligence.” (Citation omitted.)
Massman, 237 Mont. at 242, 773 P.2d at 1211. See also Dubiel v. Mont. DOT, 2012 MT
35, ¶¶ 16-18, 364 Mont. 175, 272 P.3d 66.
¶24 The District Court did not err in granting summary judgment to the City on the
grounds that Albert failed to present expert witness testimony to substantiate his
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negligent firefighting claim. As this failure is fatal to Albert’s negligence claim, we need
not address his PDD claim.
¶25 Did the District Court err by granting the City of Billings’ motion for summary
judgment on Albert’s claim of discrimination?
¶26 On appeal, Albert alleges that City officials discriminated against him by
censoring his Code enforcement violation records and by refusing to provide them to him
in a timely manner. He alleges the discrimination was based upon his age and his history
of mental illness.
¶27 As noted by the District Court, “Montana law allows a discrimination claim to go
forward if the State or one of its political subdivisions refuses to provide, withholds, or
denies services, goods, or funds to individuals.” Section 49-2-308(1)(a), MCA. To
establish a discrimination claim, Albert was required to present a prima facie case of
disparate treatment. This required that he establish that he is a “member of a protected
class” and that he was “treated differently because of membership in [the] protected
class.” Admin. R. M. 24.9.610(2)(a)(i) and (iii).
¶28 Admin. R. M. 24.9.610(2)(b) sets forth examples of evidence that Albert could
have presented to establish that he was treated differently because of his membership in a
protected class. This includes: (1) evidence that the City provided public documents to
persons who were not members of the same protected class; (2) proof that similarly
situated persons outside the protected class were treated more favorably; (3) proof the
City intended to discriminate against persons in Albert’s protected class; and (4) proof
that there is a causal connection between the City’s action and Albert’s protected class.
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As noted by the District Court, Albert alleged disparate treatment but presented no
evidence to support the allegation that he was treated differently than anyone else in his
class who requested documents from the City. Because Albert failed to satisfy the
elements of a discrimination claim, the District Court did not err in granting summary
judgment to the City on this issue.
¶29 Did the District Court err by granting the City of Billings’ motion for summary
judgment on Albert’s claim that he was denied his constitutional and statutory
right to know?
¶30 Finally, Albert argued to the District Court that the City violated his constitutional
and statutory “right to know”—the right to inspect and take a copy of any public writing
in the possession of the State of Montana. However, because Albert ultimately received
the documents he requested, the District Court granted summary judgment to the City on
the grounds of mootness. On appeal, Albert argues that a delay of over four months and
the requirement that he file suit before the City provided the requested documents does
not constitute compliance with §§ 2-6-102, 7-1-4144, MCA, and Article II, Section 9 of
the Montana Constitution, and that delayed production of documents does not moot the
issue.
¶31 Albert asserts that after the fire he made numerous attempts by mail, in person,
and through e-mail to obtain his Code enforcement record. He acknowledges that he
received documents from the City in response to his August 28 letter but claims they
were censored or incomplete. The City contends it gave him everything the file
contained in response to his letter. Albert further alleges that beginning in February 2010
the City disregarded or ignored his repeated requests for the file until he filed suit in June
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2010, at which time the City provided the documents pursuant to a discovery motion.
Unfortunately, there is no evidence in the record identifying what documents Albert
actually received after his August 2009 request or what documents he received in June
2010.
¶32 Further, the District Court record contains no admissible evidence of Albert’s
alleged numerous requests by mail or e-mail. Attached as Exhibit B to Albert’s response
in opposition to the City’s motion for summary judgment is an incomplete e-mail stating
that Albert and his counsel arrived at the City Planning Division Desk of the public
library on February 17, 2010, and asked for copies of Albert’s Code enforcement file.
While this e-mail appears to support Albert’s contention that he made a request on
February 17, 2010, the e-mail is not an authenticated document and cannot be used to
defeat summary judgment. PPL Mont., LLC v. State, 2010 MT 64, ¶ 92, 355 Mont. 402,
229 P.3d 421, rev’d in part on other grounds, PPL Mont., LLC v. Montana, ___ U.S.
___, 132 S. Ct. 1215 (2012) (“While unauthenticated documents should not be
considered on summary judgment, a document can be considered if it is ‘authenticated by
and attached to an affidavit that meets the requirements of [Rule] 56(e) and the affiant
[is] a person through whom the exhibits could be admitted into evidence.’ ”).
¶33 It is the duty of the appellant to present this Court with a record sufficient to
enable it to rule upon the issues raised. M. R. App. P. 8(2). While the record provided to
us contains partial excerpts from Albert’s deposition and his responses to discovery
requests, it does not contain any sworn testimony, affidavits, or sworn interrogatory
answers setting forth the steps Albert took in seeking production of his Code enforcement
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record, or the response by the City to those efforts. Rather, we have only Albert’s
unsworn allegations of what occurred. Thus, Albert has failed to comply with
M. R. Civ. P. 56(e), which states:
Affidavits; Further Testimony.
(1) In General. A supporting or opposing affidavit must be made on
personal knowledge, set out facts that would be admissible in evidence,
and show that the affiant is competent to testify on the matters stated.
If a paper or part of a paper is referred to in an affidavit, a sworn or
certified copy must be attached to or served with the affidavit. The
court may permit an affidavit to be supplemented or opposed by
depositions, answers to interrogatories, or additional affidavits.
(2) Opposing Party’s Obligation to Respond. When a motion for
summary judgment is properly made and supported, an opposing party
may not rely merely on allegations or denials in its own pleading;
rather, its response must -- by affidavits or as otherwise provided in
this rule -- set out specific facts showing a genuine issue for trial. If the
opposing party does not so respond, summary judgment should, if
appropriate, be entered against that party.
¶34 In Disler v. Ford Motor Credit Co., 2000 MT 304, ¶¶ 9-10, 302 Mont. 391, 15
P.3d 864, we explained the obligations of a party opposing summary judgment. We
stated:
While all reasonable inferences are to be drawn from the offered
evidence in favor of the party opposing summary judgment, where the
record . . . discloses no genuine issue of material fact, the burden then shifts
to the party opposing summary judgment to present substantial evidence of
a genuine issue of material fact. This burden is not met by merely making
conclusory or speculative statements or by raising unsubstantiated
concerns and theories in a brief. (Emphasis added.)
If Ford [the party opposing summary judgment] believed that any of
the matters which it argued to the trial court and now argues on appeal
would defeat summary judgment, then it was Ford’s burden to place the
appropriate supporting affidavits or fruits of discovery into the summary
judgment record. This it failed to do. (Citations omitted.)
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¶35 Albert had an affirmative duty to provide the District Court with “substantial
evidence and specific material facts supporting his theory by filing affidavits or through
sworn deposition testimony or interrogatory answers in the record.” Disler, ¶ 10. He did
not comply with this obligation. For this reason, we affirm the District Court’s grant of
summary judgment to the City. However, we do so on evidentiary grounds rather than on
grounds of mootness. Kitchnet v. Butte-Silver Bow County, 2012 MT 68, ¶ 19, 364 Mont.
347, 274 P.3d 740 (affirming the District Court’s grant of summary judgment to the
County and the State on different grounds by acknowledging that the court “reached the
correct result albeit for the wrong reason.”).
CONCLUSION
¶36 For the foregoing reasons, we affirm the District Court’s rulings on summary
judgment.
/S/ PATRICIA COTTER
We concur:
/S/ MIKE McGRATH
/S/ JAMES C. NELSON
/S/ BETH BAKER
/S/ MICHAEL E WHEAT
/S/ BRIAN MORRIS
/S/ JIM RICE
Justice James C. Nelson concurs.
¶37 I concur in the Court’s Opinion. That said, and referring to Issue four, I am
disturbed by Albert’s contentions that the City sat on his request for documents for
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months. If true, that is unacceptable. Montana’s Constitution guarantees that no person
shall be deprived the right to examine documents of all public bodies or agencies of state
government and its subdivisions, except where the demand of individual privacy clearly
exceeds the merits of public disclosure. Mont. Const. art. II, § 9; Billings Gazette v. City
of Billings, 2011 MT 293, ¶¶ 15-16, 362 Mont. 522, 267 P.3d 11.
¶38 A citizen who wishes to exercise this fundamental right should not have to wait
months or have to file suit to obtain his requested documents. And, in my view, there is
no “mootness” defense to a suit alleging a right-to-know violation, that at some point—
after a lengthy wait or after filing suit—the documents were finally delivered. The
violation of Article II, Section 9 occurs when the person is deprived of his fundamental
right to examine and to observe, and that violation cannot be undone by some later
curative action by the government. See Havre Daily News, LLC v. City of Havre, 2006
MT 215, ¶ 83, 333 Mont. 331, 142 P.3d 864 (Nelson & Cotter, JJ., dissenting).
Moreover, we held in Havre Daily News that even if the government produces the
requested documents after suit is filed “in order to dodge th[e] fee shifting statute,” that
does not moot the ability of the requestor to seek attorney’s fees. Havre Daily News,
¶ 44; § 2-3-221, MCA.
¶39 Unfortunately here, Albert failed to establish his right-to-know violation on
summary judgment for the technical reasons set forth in our Opinion. In my view,
however, the allegations of Albert’s Article II, Section 9 claim, if true, reflect a need by
the county officials involved to review their right-to-know procedures and protocols.
This Court has consistently looked with disfavor on violations of the fundamental right to
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know. See Yellowstone County v. Billings Gazette, 2006 MT 218, 333 Mont. 390, 14
P.3d 135. As stated in Havre Daily News,
[o]ur right to know is too fundamental to be entrusted to the whims of those
who neither understand its constitutional birthright nor honor its power to
breach the wall of secrecy that divides the government from the governed.
Havre Daily News, ¶ 85 (Nelson & Cotter, JJ., dissenting).
¶40 Therefore, I concur in the Court’s decision.
/S/ JAMES C. NELSON
Justices Patricia O. Cotter and Beth Baker join the Concurrence of Justice James C.
Nelson.
/S/ PATRICIA COTTER
/S/ BETH BAKER
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