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Charles Eugene Albert v. City of Billings

July 24, 2012

CHARLES 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

The opinion of the court was delivered by: Patricia Cotter

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 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.

¶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.*fn1 In June 2010, the City ...


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