Opening arguments Monday in a case involving a Billings couple whose house was destroyed when an enormous slab of sandstone calved off the Rims five years ago sounded at times like a college-level science seminar.
And that was just the attorneys. They told the seven-man, five-women jury that it would be hearing from a battery of geologists, hydrologists, engineers and other expert witnesses during a trial that is expected to last seven days.
Jane Deschner and Jon Lodge are suing the state of Montana and the city of Billings, saying the negligence of the two government entities directly led to the fall of the rock face on Oct. 9, 2010, destroying their house at 1313 Granite Ave.
Their suit, filed in 2010 by attorneys Kenneth Tolliver and Matthew Gallinger, claims that a culvert under Highway 3 atop the Rims, installed by the Department of Transportation, sent water flowing into a crack in the Rims where the slab above their home eventually peeled off.
The city was named in the suit because the rock face and the top of the Rims are city-owned parkland. The suit originally named the homeowners’ insurance company and its parent companies, but they were dismissed from the suit when a former District Court judge ruled that the insurance policy did not cover rockslides, earthquakes and similar incidents.
After jury selection Monday morning and instructions to the jury by District Judge Michael Moses, Tolliver delivered his opening statement on behalf of Lodge and Deschner, who are married.
He said a culvert was installed under Highway 3 when the Department of Transportation relocated that roadway in 1963. Residents under the Rims complained of flooding soon after that, Tolliver said, and the state later plugged the culvert.
Over time the plug failed and water again began to flow through the culvert, Tolliver said, and when a slab estimated at 80 tons sheared off the Rims and destroyed the Deschner-Lodge house, the cliff face behind the fallen rock was dark with moisture.
“We believe a reasonable man would have realized sandstone and water don’t mix,” Tolliver told the jury. He asked the jury for “a clear ruling that people have to pay attention.”
At the beginning of his statement, Tolliver talked about the millions of years of geology that made the Rims what they are, describing how the ancient Yellowstone River once flowed considerably above the existing top of the Rims, and how it eventually cut down through softer material to create the valley that cradles Billings.
Cal Stacey, representing the state of Montana, went into more geological history and continually warned the jury that the plaintiffs intended to ignore eons of natural forces and to concentrate on a mere sliver of time—the 47 years between installation of the culvert and the rockfall of 2010.
He spoke of the hundreds of thousands of boulders and slabs littering the slopes of the Rims all over Billings, and he showed photographs of huge rockfalls that occurred in 2011 and 2014, among other years. None of those, he said, were blamed on culverts; all resulted from natural forces including rain and snow, freeze-and-thaw cycles and the actions of tree roots growing in cracks in the Rims.
Also, he said, “gravity is a huge force in what’s going on with these Rims.”
Stacey also promised the jury that expert witnesses would testify that 90 percent of rain events are too minor to send any water through the culvert, and that what little rain does go through it drains well to the west of the spot where the slab broke off above the Deschner-Lodge house.
Every single rain event, however, would have dropped water into a natural basin just above that point in the Rims, sending water down fissures in the rock, he said. Though what happened to Deschner and Lodge was a “horrible, unexpected event,” Stacey said, their claim regarding the culvert “doesn’t hold water,” so to speak.”
Attorneys for the city of Billings are expected to make their opening arguments Tuesday morning.
The lawsuit seeks unspecified compensation for the loss of the house and possessions, in addition to court costs and attorney fees.