Covey v. Brishka
2019 MT 164, 445 P.3d 785, 396 Mont. 362 (2019)
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Rule of Law:
A property owner is strictly liable for harm caused by an abnormally dangerous condition on their property, such as a large man-made pond on a hillside, even if they exercised reasonable care, and such liability extends to the natural consequences of the abnormally dangerous activity.
Facts:
- In January 2000, Alexander and Ilma Brishka purchased property on Big Mountain Road in Whitefish that included a 4.5 million-gallon man-made fish pond built by a previous owner.
- In 2005, Michael and Stacy Covey purchased a plot of land on Whitefish Lake, located downhill from the Brishka property.
- In 2009, the Coveys commenced plans to construct a home and a driveway to access their property; engineers and excavators conducted test pits and found the soils dry, noting a culvert uphill from a neighboring property but no historical drainage through it.
- During a large storm on August 2-3, 2013, the Brishkas' pond breached its banks, causing water, boulders, trees, and other debris to flow downslope and carve large channels into the hillside.
- Following the pond breach, Covey engineers and excavators concluded the ground was saturated, water was flowing through the culvert that was historically dry, and measurements revealed historical drainage patterns were greatly altered by the pond breach.
- The driveway construction bid for the Coveys increased significantly after the pond breach, resulting in $265,512.87 in additional costs, which the Coveys bore as they were contractually obligated for all project expenses.
Procedural Posture:
- On July 28, 2016, Michael and Stacy Covey and the Covey Trust (Coveys) sued Alexander and Ilma Brishka and the Brishka Trust (Brishkas) in the Eleventh Judicial District, Flathead County (state trial court), alleging negligence, nuisance, strict liability, and trespass.
- On September 8, 2017, the Coveys filed an amended complaint.
- From April 2-4, 2018, the District Court presided over a three-day jury trial.
- Immediately prior to trial, the District Court granted the Coveys' motion in limine to exclude testimony apportioning liability to the Montana Department of Transportation (DOT) and determined the Brishkas could not introduce evidence of the Montalbans sharing driveway costs.
- At the close of trial, the Coveys withdrew their trespass, nuisance, and negligence claims, preserving only the strict liability claim.
- The District Court ruled that the Brishkas' pond constituted an "abnormally dangerous condition" and that strict liability applied, instructing the jury to determine only causation and damages.
- The jury returned a verdict in favor of the Coveys, finding that the Brishkas' liability caused damages and awarding $211,563.40 to the Covey Trust and $101,667 to Michael and Stacy Covey.
- On May 18, 2018, the District Court entered its written judgment setting out the jury award and additional costs.
- The Brishkas filed a Motion for a New Trial, which was deemed denied in August 2018.
- The Brishkas (appellants) appealed the jury trial verdict and judgment to the Supreme Court of Montana.
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Issue:
Does the maintenance of a 4.5 million-gallon man-made pond on a hillside, which subsequently breaches and causes damage to downhill property, constitute an "abnormally dangerous condition" warranting the application of strict liability under the Restatement (Second) of Torts § 520?
Opinions:
Majority - Justice James Jeremiah Shea
Yes, the District Court did not err in applying strict liability, as the Brishkas' pond constituted an "abnormally dangerous condition." The Court affirmed the District Court's application of the six factors from Restatement (Second) of Torts § 520, which consider the degree and likelihood of harm, the inability to eliminate risk with care, common usage, appropriateness of the activity to the location, and community value versus dangerous attributes. The District Court correctly concluded that the large man-made pond on a mountainside, with its potential for catastrophic damage, met the criteria for an abnormally dangerous condition. The Court rejected the Brishkas' argument that the specific harm (altered drainage patterns) was outside the scope of strict liability, stating that water discharge from a pond breach is precisely the type of harm anticipated. Furthermore, the Court dismissed the Brishkas' attempt to invoke the Common Enemy Doctrine, as the damage was caused by the pond's breach, not vagrant surface waters. The Court also found no error in allowing the Coveys to claim the full amount of driveway damages, as they were contractually obligated to pay and did pay these costs, distinguishing the case from precedent involving co-tenants. Regarding the diminution of property value evidence, the Court noted that sufficient evidence supported the jury's general damage award, and the Brishkas waived any objection by failing to object to the jury instructions or verdict form. Finally, the Court affirmed the District Court's decisions to allow closing arguments referencing previously admitted negligence evidence for witness credibility and to exclude evidence of other potential causes of the pond breach due to the Brishkas' failure to properly disclose expert testimony and offer relevant jury instructions.
Concurring - Justice Ingrid Gustafson
Justice Ingrid Gustafson concurred with the majority opinion.
Concurring - Justice Dirk M. Sandefur
Justice Dirk M. Sandefur concurred with the majority opinion.
Concurring - Justice Beth Baker
Justice Beth Baker concurred with the majority opinion.
Concurring - Justice Jim Rice
Justice Jim Rice concurred with the majority opinion.
Analysis:
This case significantly reinforces Montana's application of strict liability for landowners maintaining artificial water impoundments deemed abnormally dangerous, particularly in challenging terrains. It highlights the critical importance for litigators to object specifically and timely to jury instructions and verdict forms to preserve issues for appellate review. Furthermore, the ruling clarifies that a plaintiff contractually responsible for damages can seek full recovery, regardless of informal reimbursement agreements, and that properly admitted evidence can be utilized in closing arguments for purposes like impeaching witness credibility, even if the related claim is no longer before the jury.
