No. 86-446
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
MARK TOWNSEND, Individually as
Guardian of WAYNE TOWNSEND, a
minor,
Plaintiffs and Respondents,
-vs-
STATE OF MONTANA,
Defendant and Appellant.
APPEAL FROM: The District Court of the Second Judicial District,
In and for the County of Silver Bow,
The Honorable Mark P. Sullivan, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Poore, Roth & Robinson; J. Richard Orizotti, Butte,
Montana
For Respondent :
Michael McKeon, Anaconda, Montana
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Submitted on Briefs: April 30, 1987
Decided: June 16, 1987
JUN 1 j 1987
~iled :
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Clerk
Mr. Justice R.C. McDonough delivered the Opinion of the
Court.
The State of Montana appeals the May 28, 1986, order of
the District Court of the Second Judicial District granting
plaintiff, Mark Townsend's motion for a new trial. We
reverse.
On June 4, 1983, nine-and-a-half year old Wayne Townsend
was injured when his bicycle hit a pothole on Saddle Rock
Road. Saddle Rock Road is a 1.9 mile long black-top road,
owned and maintained by the State of Montana. The road is
located in the Butte Section of the Butte Division of the
Montana Department of Highways. Pat Kane was the Field
Maintenance Chief at the time of the accident. Bill Steyh
was the Field Maintenance Supervisor (section man) in charge
of the Butte Section. Both individuals testified at trial
that while traveling Saddle Rock Road in May of 1983, they
noticed potholes starting to form at the site of Wayne's
accident. Neither man thought, in view of the limited use of
the road, that the forming potholes constituted an immediate
danger to the public. Therefore, repair of the potholes was
not immediately ordered. The potholes were not filled until
September of 1983, three months after the accident.
The deposition of Don Gruel, Administrator of the
Maintenance and Equipment Division of the Montana Department
of Highways, was read at trial. Gruel was questioned
extensively about a 1965 statute requiring the Department to
develop rules for the construction, repair, maintenance and
marking of state highways and bridges, S 60-2-201 (4), MCA.
Gruel stated that he did not believe the Department had
responded to that mandate. He stated further that although
the Montana Department of Highways Maintenance Manual was
probably the closest thing to rules the Department had in
1983, it was not developed in response to S 60-2-201(4), MCA.
Rather, the manual was developed in 1973 at Gruel's
instigation to provide guidelines for Department employees
state-wide.
The jury was instructed that the Department was required
by law to adopt rules for the construction, repair,
maintenance, and marking of state highways and bridges and
that the Maintenance Manual "was adopted as required by law."
Although the State objected to the instruction at trial,
neither party objects to this characterization of the manual
on appeal. We therefore find for purposes of this appeal
only that the Maintenance Manual contains the
statutorily-mandated rules.
The manual and its purpose are important to this appeal
because it contains the following:
4. MAINTENANCE - BITUMINOUS SURFACE
OF
4.10 GENERAL DESCRIPTION
The early detection and repair of minor blemishes
is the most important phase of maintenance work.
Cracks and other surface breaks which are almost
unnoticeable in their early stages, may develop
into major repair jobs . . .if unattended. Such
breaks can occur even in a few days where traffic
is heavy. For this reason, close inspection of the
pavement by competent and experienced personnel is
absolutely necessary.
PATCHING POT HOLES
This type of failure should have immediate
attention. Pot holes or chuck holes are dangerous
to traffic, increase rapidly in size and are
excellent for feeding water into the base and
subgrade.
Maintenance Manual, pp. 4-1 and 4-6.
Testimony was received regarding the extent employees
were expected to comply with the Maintenance Manual. Pat
Kane, Field Maintenance Chief, repeatedly emphasized the
discretionary nature of the "guidelines" contained therein.
However, plaintiff's attorney would then attempt to impeach
Kane with remarks made at his deposition indicating that
adherence to the manual was necessary to insure proper work
performance. Bill Steyh, section man for the Butte Section,
testified that he referred to the manual as a guideline to be
followed whenever possible and that "it was not good practice
to not go by the book."
Pat Kane and Bill Steyh testified about the maintenance
work performed on Saddle Rock Road over the years. Written
documentation indicated that the last major repair of the
area prior to Wayne's accident occurred September 4, 1981,
when a blade patch approximately . 3 miles long was laid.
Both individuals testified that many potholes were hand
patched between the September 1981 and September 1983 work;
however, they did not remember whether any of the patches
were made in the area of the accident. Their diaries
indicated hand patching had occurred, but did not specify
where.
Following the close of three days of testimony, the jury
returned a verdict finding that the State of Montana was not
negligent. Plaintiff moved for a new trial April 21, 1986.
The memorandum and order granting plaintiff's motion was
issued May 28, 1986. In it, the trial judge stated:
[Tlhe evidence it received during the course of
this trial has established overwhelmingly and
conclusively that the State of Montana, through its
Department of Highways, was negligent for failing
to maintain Saddle Rock Road in a reasonably safe
condition. When the State's employees admit that
to violate its maintenance manual is bad practice
on their part and then have evidence showing
repeated violations of that maintenance manual,
there has been established, in this court's
opinion, negligence as a matter of law.
The State of Montana raises three issues in its appeal
of the order granting Townsend a new trial.
1. Was there substantial evidence to support the jury's
verdict that the State of Montana was not negligent?
2. Did the District Court abuse its discretion in
ordering a new trial and also holding that the State of
Montana was negligent as a matter of law?
3. Did the District Court err in refusing to allow
certain testimony relating to the factors considered by the
State of Montana, Department of Highways in maintaining
roadways, including Saddle Rock Road?
Our resolution of the first two issues renders
consideration of issue number three unnecessary.
The first and second issues are intertwined. The
parties are in agreement that highway employees were aware of
the potholes approximately one month before Wayne's accident.
They also agree that the potholes were repaired approximately
four months after they were first noticed. The real question
is whether the State's failure to immediately repair these
potholes was in violation of its duty to exercise ordinary
and reasonable care in maintaining Montana's roads and
highways.
The jury found no violation of the reasonable care
expected. The trial judge disagreed and granted Townsend's
motion for a new trial. As support for his decision, the
trial judge found that because the State's employees admitted
violation of their Maintenance Manual was bad practice and
because there was evidence of repeated violations of that
manual, negligence existed as a matter of law. The State
argues, and we agree, that this conclusion is in violation of
Cash v. Otis Elevator Co., et al. (Mont. 1984), 684 P.2d
1041, 41 St.Rep. 1077.
In Cash, we held that violations of administrative codes
not incorporated into a statute by reference are evidence of
negligence, but not negligence per se. Likewise, the
admitted violations of the Maintenance Manual provided
evidence of negligence. The State then had the burden of
producing other evidence to show it had exercised due care in
maintaining Saddle Rock Road. Apparently, in the jury's mind
at least, the State succeeded in meeting this burden.
We find that the trial judge erred in concluding that
the conduct of the State's employees was negligent as a
matter of law. The trial judge relied upon this erroneous
principle of law in granting a new trial. Applying the
correct standard of negligence to this case there is
substantial credible evidence to support the jury verdict.
If there is substantial credible evidence to support the
jury's verdict, the verdict should stand. Maykuth v. Eaton
(Mont. 1984), 687 P.2d 726, 727, 41 St.Rep. 1800, 1802.
Pat Kane and Bill Steyh testified that the potholes were
just forming and only 1/2 to 3/4 inches deep when first
observed in May of 1983. Phil Krisk, the individual who
ultimately patched the potholes, testified that they were
three inches deep in September, three months after Wayne
Townsend's accident. Mark Townsend testified that the
potholes were six to eight inches deep at the time of Wayne's
accident. The jury was free to accept the testimony of
whomever they believed to be most credible.
Pat Kane testified that pothole size is greatly affected
by the type of vehicles using the road. Trucks grossing over
100,000 pounds cause potholes to grow much more quickly than
do ordinary passenger cars. People who resided on or near
Saddle Rock Road testified that traffic on that road
consisted primarily of the residents' vehicles and a few
trucks. Thus, there was sufficient evidence to support a
determination by the jury that the State's employees acted
reasonably in not immediately repairing shallow potholes
which were not susceptible to rapid growth.
Townsend contends the jury's verdict improperly invokes
the financial feasibility defense. We disagree. The
financial feasibility defense has been soundly rejected by
our Court when cost is the State's sole excuse for its
failure to construct or maintain properly. State ex rel.
Byorth v. District Court (1977), 175 Mont. 63, 572 P.2d 201.
"However, where cost is but one among many factors affecting
the State's choice of a particular method of construction or
maintenance, it is relevant evidence on the reasonableness of
the alternative taken." Modrell v. State (1978), 179 Mont.
498, 501, 587 P.2d 405, 406.
The jury was given the identical instruction approved in
Modrell as to the impermissible use of the financial
feasibility defense.
INSTRUCTION NO. 16
If you find that the Defendant, State of Montana,
was negligent in planning, constructing or
maintaining the highway in question you may not
excuse the State's negligence on the ground that
proper maintenance or lack of sufficient employees
was beyond the financial means of the State of
Montana. Lack of adequate funds or an adequate
number of employees is not a factor in the duty of
the State to plan, construct and maintain its
highways in a reasonably safe condition.
Here, cost is not the State's sole defense. There is a
limit to how many potholes can be repaired in any given time
period. The Department's supervisory employees made a
decision based on the severity of the potholes, as well as
the frequency and type of traffic on the road in determining
whether repair of the potholes was immediately necessary.
They took a calculated risk that the potholes were small
enough and the traffic light enough that repair of the
potholes could wait without endangering the safety of the
traveling public. The jury agreed with the employees1
decision. There is substantial credible evidence to support
the jury's decision.
Reversed and remanded for reinstatement of the jury
verdict.
We Concur: -
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Chief Justice
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Justices