MICHAEL J. COVEY AND STACY D. COVEY, INDIVIDUALLY and AS TRUSTEES OF THE AMENDED AND RESTATED COVEY FAMILY TRUST U/D/T/ DATED OCTOBER 23, 2006, Plaintiffs and Appellees,
ALEXANDER R. BRISHKA AND ILMA BRISHKA, AS CO-TRUSTEES OF THE BRISHKA TRUST ESTABLISHED MARCH 20, 1999, Defendants and Appellants.
Submitted on Briefs: February 13, 2019
FROM District Court of the Eleventh Judicial District, In and
For the County of Flathead, Cause No. DV-16-618 A Honorable
Amy Eddy, Presiding Judge
Appellant: Paul R. Haffeman, Joseph M. Sullivan, Davis,
Hatley, Haffeman & Tighe, P.C., Great Falls, Montana
Appellee: Sean S. Frampton, Laura J. Webb, Frampton Purdy Law
Firm, Whitefish, Montana
JEREMIAH SHEA JUSTICE
Appellants Alexander and lima Brishka, as co-trustees of the
Brishka Trust (collectively "Brishkas"), appeal the
jury trial verdict and judgment of the Eleventh Judicial
District, Flathead County, finding the Brishkas strictly
liable for the breach of a pond on their property and
awarding damages to Michael and Stacy Covey and the Covey
Trust (collectively "Coveys"). We address the
following issues on appeal:
Issue One: Whether the District Court erred in its
application of strict liability.
Issue Two: Whether the District Court erred when it
allowed the Coveys to claim the full amount of damages for
the increased cost to the driveway project.
Issue Three: Whether the District Court erred by allowing
evidence regarding the diminution of the Coveys' property
Issue Four: Whether the Coveys made improper closing
arguments regarding the Brishkas' alleged
Issue Five: Whether the District Court erred when it
excluded evidence of other causes of the pond breach.
AND FACTUAL BACKGROUND
In January of 2000, the Brishkas purchased property on Big
Mountain Road in Whitefish. The Brishka property included a
4.5 million-gallon man-made fish pond built by a previous
owner. In 2005, the Coveys purchased a plot of land on
Whitefish Lake, downhill from the Brishka property.
In 2009, the Coveys commenced plans to construct a home on
their property. They hired landscape architects, engineers,
and excavators to design and build a driveway to access the
property. Prior to beginning construction, and as part of
their investigation, the engineers dug test pits, which
revealed no water, and concluded the soils on the property
were dry. The engineers noted a culvert existed uphill from a
neighboring property, but the engineering investigation
revealed water did not historically drain through it. The
excavators similarly concluded the soil conditions were dry.
Due to the steep terrain, it was necessary for the driveway
project to traverse the lots of adjacent property owners,
Cora Belle and Patrick Montalban (the Montalbans). The
initial driveway bid was $233, 000. The Coveys contracted
with all of the necessary parties and paid all of the upfront
costs for the driveway construction. The Coveys testified
that they had an informal agreement with the Montalbans to be
reimbursed a pro rata share of the driveway project costs.
During a large storm on August 2-3, 2013, the Brishkas'
pond breached its banks and water flowed downslope. The water
carried boulders, trees, and other debris downhill and carved
large channels into the hillside. Following the pond breach,
the Coveys conducted additional surveys. The engineers and
excavators concluded the ground was saturated, water was
flowing through the culvert that historically was dry, and
measurements revealed historical drainage patterns were
greatly altered by the pond breach.
On July 28, 2016, the Coveys brought suit against the
Brishkas for negligence, nuisance, strict liability, and
trespass. On September 8, 2017, the Coveys filed an amended
complaint. Following the Brishkas' pond breach, the
Coveys alleged the driveway construction bid was increased to
$498, 000. The Brishkas responded that they were not
i responsible for the damage to the
Coveys' property and, as one of their asserted defenses,
contended that another party was the cause of the Coveys'
In response to discovery requests, the Coveys described their
[The Coveys] suffered damages in the amount of $265,
512.87. This is the cost of the road construction, drainage
features, engineering and design to mitigate the
groundwater and surface water flows resulting from the pond
breach. The amount was calculated by subtracting the amount
of the original competitive bid-awarded prior to the pond
failure-from the final completed expense of the Project.
[The Coveys] also claim emotional distress damages for the
interference with the use of their property. This is a claim
for general damages that will be determined by a jury based
on the evidence presented and thus no calculation has been
Pretrial Order set forth the Coveys' damages as the
increased cost of the driveway project and all damages
"allowed by law including economic, tort damages,
damages to property, and emotional distress."
Both parties filed several motions in limine. The
Coveys moved to exclude, among other things, evidence at
trial regarding road construction by the Montana Department
of Transportation (DOT) that allegedly affected the drainage
into the Brishkas' pond. The Brishkas moved to prohibit
the Coveys from claiming the entire amount of $265, 512.87
for the increased cost of the driveway project. The Coveys
opposed that motion and sought to preclude the Brishkas from
arguing at trial that the Coveys had not suffered the entire
amount of $265, 512.87 for the increased cost of the driveway
From April 2-4, 2018, the District Court presided over a
three-day jury trial. Immediately prior to the start of the
trial, the District Court orally ruled on the parties'
motions in limine. The District Court granted the
Coveys' request to exclude testimony that would apportion
any liability to DOT. The District Court also determined the
Brishkas could not introduce evidence that the Montalbans
were sharing the increased cost of the driveway project with
At trial, Michael Covey, over objection, testified that he
was solely responsible for paying the entire amount of the
increased cost of the driveway project. Michael Covey also
offered testimony, over objection, speculating as to a
decrease in the property value following the pond breach. The
Coveys presented expert testimony that an outlet culvert that
drained from the Brishkas' pond was obstructed by a berm
on one side of the pond, making a pond breach more likely.
At the close of trial, the Coveys withdrew their trespass,
nuisance, and negligence claims, preserving only the strict
liability claim. The District Court analyzed whether the
Brishkas' pond was an abnormally dangerous activity or
condition such that strict liability should apply based on
two lines of case law:
It appears to me that there are two separate lines of cases
that address the situation, one is embodied in
Dutton [v.] Rocky Mt. Phosphates ... [a
case that held] that impoundment of material on your property
the property owner can be strictly liable for.
Certainly in this case this was an impoundment of water on
the property.... [Next, ] the Montana Supreme Court in
Matkovic [v.] Shell Oil. . . adopted the
Restatement Second of Tort's [d]efinition of Strict
Liability stating: 'One who carries on an abnormally
dangerous activity is subject to liability for harm to the
person, land or chattels of another resulting from the
activity though he has exercised the utmost care to prevent
the harm; two, the strict liability is limited to the kind of
harm the possibility of which makes the activity abnormally
In Chambers [v.] City of Helena, ... the
[C]ourt articulated the factors for determining whether an
abnormally dangerous condition exists, the same ones as
adopted in Matkovic and Restatement Second.
District Court applied each factor from the Restatement
(Second) of Torts to the condition of the Brishkas' pond
and concluded that "maintenance of the pond
constitute[d] an abnormally dangerous condition"
warranting application of strict liability.
During closing argument, the Coveys' counsel discussed
testimony regarding the blocked outlet culvert and the berm
on the Brishkas' property and used this testimony to cast
doubt on Alexander Brishka's credibility as a witness.
The District Court overruled the Brishkas' objection that
the evidence about the blocked culvert and berm were no
longer relevant for the only remaining claim: strict
The District Court instructed the jury that the Coveys
brought a claim for strict liability, and that it had ruled
that the Brishkas are strictly liable for any harm caused by
the breach of their pond. The District Court then instructed
the jury that it would be analyzing only the issues of
causation and damages. The District Court instructed that if
the jury found the Brishkas' pond caused the Coveys'
harm, it "must determine the ...