Bazzaz v. Howe

Evidence that may be "relevant and essential" to a causation based defense, which requires a finding of fact that cannot have been made by a judge on summary judgment, is admissible, so long as the jury is not making a determination on the causation issue.

Homeowner appealed a jury verdict and general judgment in favor of Neighbor. Homeowner brought claims for negligence, trespass, timber trespass, ultrahazardous activity, and private nuisance against their Neighbor, alleging that actions Neighbor took on his property triggered landslides that destroyed Homeowners' home. On appeal, Homeowner's pursued two assignments of error with regard to their negligence claim: the trial court erred by (1) admitting evidence that the builder of Homeowners' home was negligent and failed to build the house to standards required by building codes and (2) giving a jury instruction on the natural flow of surface water. Neighbor's third party claim against Homeowner's home builder was dismissed, and Homeowner argued all evidence of the third party's fault should be inadmissible at trial. Homeowner brought motions in limine to exclude any evidence of the conduct of the home builder and argued that the home builder had been determined to not be at fault and therefore any probative value would be outweighed by unfair prejudice and would mislead the jury. The trial court denied the motions and explained the evidence "would likely be relevant and essential to defenses based on causation, which require a finding of fact that could not have been made by a judge on Summary Judgment." The trial court concluded that "[d]efendant may offer evidence that a third party has sole and exclusive fault, and may do so in the alternative with evidence that regards more than one third party who may be found to have sole and exclusive fault." The Court held any error in admitting evidence of the builder's conduct was harmless because the evidence only pertained to causation, an issue the jury did not reach on the special verdict form. As for the natural flow jury instruction error, the Court held that the trial court did not err because Homeowner's put at issue whether Neighbor could be liable for damages caused by draining surface water from his property and because Neighbor presented evidence that supported giving the instruction. The Court concluded that the trial court did not reversibly err, and affirmed.