                              NO.    91-187

            IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1991


IAN CHRISTOPHERSON, d/b/a OK CORRAL BAR,
            Plaintiff and Appellant,
     -vs-
WHITE, INC., d/b/a WHITE REFRIGERATION, et al.,
            Defendant and Respondent.
     AND
ERMINDO and NELLIE ZAVARELLI, d/b/a OK CORRAL B
            Plaintiffs and Appellants,
     -vs-
WHITE, INC., d/b/a WHITE REFRIGERATION,
            Defendant and Respondent.



APPEAL FROM:     District Court of the Fourth Judicial District,
                 In and for the County of Missoula,
                 The Honorable Jack Green, Judge presiding.


COUNSEL OF RECORD:
            For Appellant:
                 Alan J. Lerner, Attorney at Law, Kalispell, Montana;
                 John B. Whiston, Rossbach & Whiston, Missoula,
                 Montana.
            For Respondent:
                 Richard Ranney,      Williams   &   Ranney,   Missoula,
                 Montana.


                               Submitted on briefs:     August 15, 1991

Filed:
Justice R. C. McDonough delivered the Opinion of the Court.

      Ian Christopherson and Ermindo and Nellie Zavarelli, owners,
appeal from an order of summary judgment granted by the District
Court of the Fourth Judicial District, Missoula County, in favor
of defendant White, Inc.
      The sole issue on appeal is:
     Whether the District Court erred in determining that no
material evidence existed relative to a fire to support a finding
of negligence or proximate cause on the part of White.   We affirm.
      In the early morning hours on August 19, 1986 a fire occurred
at the O.K. Corral Bar in Missoula, Montana causing extensive
damage.   In June of 1983 the Zavarellis hired White Refrigeration
Inc., (White) to install a compressor and a dual pressure control
switch that regulated the compressor.   This equipment was already
on hand, furnished by the Zavarellis, when White came on the job.
Testimony indicated that White moved the compressor from the
basement to a storage room that received the maximum amount of sun
during the summer months.     White was not called back for any
repairs or modifications to the equipment after start up of the
system in November of 1984.
      John Zavarelli, the son of one the owners, testified on
deposition that he did most of the electrical wiring on the job.
A   friend of his, who is a certified electrician, oversaw and
inspected most of the electrical work.       Zavarelli's testimony
indicated that White hooked up the wires between the switch and the
compressor.
    White's employees Paul Smith and Jack Baird testified that
they did not perform any electrical work on the job.          They also
testified that it was against union rules for refrigeration
technicians to do electrical work.
     Sid Pelson of Economy Refrigeration, who had done maintenance
work on the equipment, conferred with Creighton Sayles, the fire
investigator for Missoula County Rural Fire Department, on the
night of the fire.     Pelson testified that the wiring between the
compressor and the control switch was not the source of a short
circuit. He further testified that a short circuit occurred in the
control unit itself.
     Creighton Sayles testified that the contact points on the dual
pressure   control   switch were   the hottest part      of   the   fire
indicating the switch was an ignition source.        Although he could
not definitely state it was the cause of the fire, the evidence
indicated that the switch was the most probable cause.        Te5timony
revealed that paper, cardboard boxes, and clothing were piled next
to the compressor.     If the contact points of the control switch
were the source of ignition, sparks probably came into contact with
these combustibles sitting adjacent to the compressor.
     Christopherson and the Zavarellis filed a lawsuit alleging
that White's negligent installation of the refrigeration system was
the proximate cause of the fire at the O.K.          Corral Bar.    The
District Court granted      summary    judgment in   favor of White.
Christopherson and the Zavarellis' appeal,
     Christopherson and the Zavarellis maintain the District Court

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erred in granting summary judgment.      We disagree.
       Our scope of review is the same as the trial court and is a
question of law.      If as a matter of law no genuine issue of
material fact exists, summary judgment is granted.
       Summary judgment is proper under Rule 56(c), M.R.Civ.P., when
the movant shows that there is no genuine issue as to any fact
deemed material, in light of the substantive legal principles
entitling the movant to judgment as a matter of law.             A11
reasonable inferences must be drawn in favor of the party opposing
the motion.     In making its determination on whether to grant a
motion for summary judgment, the court must consider the entire
record.    Smith v. Barrett (1990), 242 Mont. 3 7 , 40, 788 P.2d 324,
326.    There are no issues of material fact involved here.
       Appellants propound three possible theories of negligence.
One, that White was negligent          in wiring   the switch to the
compressor. Two, that White was negligent in moving the compressor
from the basement to the storage room.      And three, that White was
negligent in failing to inspect the points on the switch or warn
the owners that these points could become pitted and weld together.
       As to the wiring of the switch to the compressor, there is no
evidence that the wiring caused the fire.      Testimony of Creighton
Sayles and Sid Pelson indicates the fire was caused not by the
wiring but by the dual pressure control switch contact points.
       The Zavarellis contend that White was responsible for the
placement of the compressor in the upstairs storage room.        Paul
Smith, White's installer, testified that he did not recall making

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the decision to move the compressor upstairs and that he probably
would have advised against it.              While a dispute exists on the
placement of the compressor it is not material.            Again, the only
evidence as to the cause of the fire was the points on the dual
pressure control switch. Creighton Sayles testified that while the
storage room was an unforgiving environment, the most probable
cause of the fire was the dual pressure control switch.
     Christopherson maintains that White was negligent in failing
to either inspect the contact points on the dual pressure control
switch or warn the owners that the contact points, if not properly
cleaned       and   maintained     could pit, which would     increase the
propensity of the points to arc and weld together.
     Jack Baird, White's technician, testified that normal use, and
overamperage could cause the points to weld together. However, he
testified that when this occurs the compressor shuts down.           He was
not aware that it could be a fire hazard.           There is no evidence by
any qualified witness there was a duty on the part of White to
inspect the points or to warn the owners.
        The     appellants   maintain    that   summary   judgment   is   not
appropriate in negligence cases. Hendrickson v. Neiman (1983), 204
Mont.    367,    665   P.2d 219.    In Hendrickson we said:    "Ordinarily,
issues of negligence are not susceptible to summary judgment and
are better determined at trial."             a.at   371, 6 6 5 P.2d at 222.

However, upholding summary judgment in a negligence case is not
inconsistent with our opinions.
        In Brohman v. State (1988)' 230 Mont. 198, 203, 749 P.2d          67,


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                                            October 1, 1997

                             CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:


Alan J. Lerner
LAW OFFICES O F ALAN J. LERNER
P.O. Box 1158
Kalispell, MT 59903-1158

John B. Whiston
ROSSBACH & WHISTON, P.C.
401 North Washington Street
P.O. Box 8988
Missoula, MT 59807


Richard Ranney
WILLIAMS LAW FIRM, P.C.
P.O. Box 9440
Missoula, MT 59807-9440

                                               ED SMITH
                                               CLERK OF THE SUPREME COURT
                                               S T A \MONTANA
                                                         ~
70, we said:

    It is true that because of the peculiarly exclusive
    nature of the concept of negligence, it is the rare
    personal injury case which may be properly disposed of
    by summary judgment. (Citations omitted.) [Tlhe mistake
    should not be made of supposing that because summary
    judgment cannot normally be granted in a particular kind
    of case, the motion should not be granted in an unusual
    case of the kind in question where such procedure is in
    fact appropriate, citing Bland v. Northfork & Southern
    Railway (4th cir. 1969), 406 F.2d 863, 866.
     There     is   no   evidence   to   support   Christopherson's   and
Zavarellis' claim there was negligence on the part of White and
such negligence was the proximate cause of the fire.
     summary Judgment under Rule 56 (c) M.R.Civ.P., was properly
granted.
     A f finned.




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