No. 90-322
IN THE SUPREME COURT OF THE STATE OF MONTANA
DIRK WALDEN,
Plaintiff and Appellant,
v.
THE STATE OF MONTANA,
and THE MONTANA STATE
HIGHWAY DEPARTMENT,
Defendants and Respondents.
O%@v,&,
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Thomas M. McKittrick, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Dennis Patrick Conner, Attorney at Law, Great Falls,
Montana
Patrick F. Flaherty; Flaherty & Winner, Great Falls,
Montana
For Respondents:
Hon. Marc Racicot, Attorney General, Helena,
Montana; Norman C. Peterson, Assistant Attorney
General, Helena, Montana; Lynn M. Grant, Assistant
Attorney General, Helena, Montana
Max Davis; Cure, Borer & Davis, Great Falls, Montana
Submitted on Briefs: May 10, 1991
Decided: October 2,
Filed: Ui - 2 1991
Justice Karla M. Gray delivered the Opinion of the Court.
The appellant, Dirk Walden, appeals from the final judgment
entered by the Eighth Judicial District Court, Cascade County. The
jury found, by special verdict, that the respondent's negligence
was not a legal cause of the appellant's injuries. The appellant
requests a new trial. We affirm.
The appellant raises the following issues on appeal:
1. Whether the District Court improperly instructed the jury
on the State's duty to maintain its highways.
2. Whether the District Court erred in giving Jury
Instruction No. 39 regarding practicability and cost of highway
repair.
3. Whether the District Court erred in refusing the
appellant's challenge for cause of a prospective juror.
4. Whether the appellant was denied a fair trial as a result
of the District Court's rulings on the evidence concerning the
appellant's failure to wear a helmet.
5. Whether the District Court erred in allowing certain
testimony of the State's witness concerning bicycle helmets.
On July 20, 1987, Walden suffered a serious head injury as a
result of a bicycle accident. The accident occurred on the
northbound entrance ramp to U.S. Interstate 15 near Great Falls.
Interstate 15 is a divided highway running north and south
through Great Falls. The portion of the highway on which the
accident occurred is located south of Great Falls on Gore Hill.
Near the top of the hill there is an overpass with an exit ramp
allowing southbound traffic to exit the interstate and an entrance
ramp allowing northbound traffic to enter the interstate. The
entrance ramp descends down Gore Hill a distance of approximately
2,150 feet at a five percent grade before it merges with the
northbound travel lanes of the interstate.
The interstate was constructed in 1967. The entrance ramps,
exit ramps and shoulders are made of asphalt; the travel lanes
consist of concrete slabs fifteen feet long, eight inches deep and
one lane wide. Where the non-bonding asphalt and concrete meet,
a longitudinal tlseamll
exists.
The concrete is originally poured in one piece. After the
concrete sets, ttcontractiontt three inches deep are made across
cuts
the width of the lanes every fifteen feet. The cuts serve to
control the cracking of the concrete. When the concrete expands
and contracts with temperature change, it cracks along the weakened
cuts, as intended, forming the individual slabs.
The highway, therefore, is no longer a single structure, and
each slab can move independently of the adjoining slab. Heavy
truck traffic and natural forces such as heat, cold and moisture
create ttslab faulting." Slab faulting is the difference in
concrete slab elevation that is formed by the shifting of the
individual slabs in relation to one another. The movement of the
slabs compresses the subgrade material underneath and causes the
formation of air pockets. Water eventually fills these pockets and
when a heavy vehicle drives over the slab it exerts inordinate
pressure on this water, forcing it to escape. Following the path
of least resistance, the water is forced with tremendous energy out
of both the contraction cracks between the slabs and the
longitudinal seam between the concrete and the asphalt shoulder.
In addition to the slab faulting, heavy traffic actually compacts
the asphalt on the ramps and shoulders.
The result is that the transitional seam between the asphalt
and the concrete spreads apart slightly, and at various points the
concrete edge will be higher than the asphalt. This was the
condition of the seam between the asphalt entrance ramp and the
concrete travel lane where Walden had his accident.
On the day of the accident two friends, John Huotte and Andrew
Flaherty, were bike riding near Walden's home in Great Falls and
stopped for a visit. Walden decided to join Huotte and Flaherty
on the bike ride. The three men biked to Tenth Avenue South and
then decided to proceed up Gore Hill. They biked single file on
the asphalt shoulder of Interstate 15 and up the southbound exit
ramp to the top of Gore Hill. After resting at the top of the exit
ramp, they crossed the overpass and proceeded down the northbound
entrance ramp.
Walden was wearing specially designed cycling shoes that he
had strapped on to his pedals before starting down the ramp.
Huotte was in the lead, followed by Walden and then Flaherty.
Testimony at the trial indicated that Walden and Flaherty were
"drafting." Drafting is a technique used by cyclists whereby a
cyclist tries to ride in the vacuum created behind the cyclist in
front of him or her, in order to generate a greater speed with less
resistance.
Huotte and Flaherty agreed that the speed of the three bikes
as they neared the bottom of the hill was about thirty miles per
hour. Huotte also testified that he could hear Walden pedaling
behind him as they approached the end of the entrance ramp.
Walden and Flaherty were travelling slightly faster than
Huotte and moved out to Huotte's left in order to pass him. At the
same time, Huotte began to move to his left so that he could get
farther away from the guard rail and the debris lying on the
shoulder to his right.
The three bikes were virtually side by side as they came to
the end of the entrance ramp and Walden and Flaherty were forced
to cross the transitional seam between the asphalt shoulder and the
concrete travel lane. Flaherty successfully maneuvered his bike
over the seam. Walden's tires slipped into the seam causing him
to lose control of his bike. Walden fell, striking his head; he
slid down the highway with his bike for about 70 feet and was still
strapped into his pedals when he came to a stop.
The first issue on appeal is whether the District Court
improperly instructed the jury on the State's duty to maintain its
highways. Walden contends that the District Court erred in
refusing to instruct the jury on his theory of the case. It is the
appellant's theory that the State has a duty to maintain its
highways so that they are reasonably safe for bicyclists. To
support this theory, the appellant offered Plaintiff's Proposed
Jury Instruction Nos. 21 and 51. The ~istrictCourt refused these
instructions and instead gave Instruction No. 30 which was
patterned after this Court's holding in Buck v. State (1986), 222
Mont. 423, 723 P.2d 210. Instruction No. 30 was identical to
Plaintiff's Proposed Instruction No. 21 except that it omitted the
specific reference to bicyclists and made general reference to
I1persons and vehicles. Plaintiff s Proposed Instruction No. 21
read in part:
Although the State is not an insurer of one who uses
the highways, it is under a duty to keep its highways in
a reasonably safe condition for ordinary use thereof,
including use bv bicyclists. The State's duty extends
to the paved portion of the roadway, and to the shoulders
and the adjacent parts thereof.
It is the further duty of the State to construct and
maintain its highways so that no latent nor hidden defect
or trap thereon constitutes an unreasonable danger to
persons and vehicles, including bicvclists.
Instruction No. 30 omitted the emphasized portions.
All the given instructions must be read as a whole in
determining whether the giving of certain jury instructions
constitutes reversible error. If the given instructions, when
viewed in their entirety, state the correct law applicable to the
case, there is no reversible error. Jacobsen v. State (1989), 236
Mont. 91, 769 P.2d 694.
The appellant contends that the jury was left to speculate
about whether the State has a duty to maintain its highways, where
bicycle travel is permitted, in a reasonably safe condition for
bicyclists. The appellant insists that the State has such a duty
and must make certain the interstate is reasonably safe for
bicycles, not just ''normalW vehicles.
The question for this Court is whether the instructions given
to the jury correctly stated the applicable law. The instructions
provided :
You are instructed that Interstate 15 North and
South Great Falls was at all times a public highway.
[Instruction No. 10. ]
You are instructed that under Montana law a bicycle
is defined as a vehicle and' that Dirk Walden had the
right to be riding his bicycle on Interstate 15 at the
time of his accident.
While the State of Montana Department of Highways
may by rule prohibit bicycles from being used on
interstates or public highways, the State adopted no such
rule prohibiting bicycle use on Interstate 15.
[Instruction No. 11.1
You are instructed that a person operating a bicycle
shall be granted all of the rights and shall be subject
to all of the duties applicable to the driver of any
other vehicle. [Instruction No. 12.1
When these instructions are read with Instruction No. 30, no
room for speculation exists as to whether the duty to maintain the
highways extends to bicyclists. The State's duty is as stated in
Instruction No. 30, to maintain its highways Ifina reasonably safe
condition for ordinary use thereof." This duty extends to
bicyclists if they are permitted on a specified highway. The jury
was properly instructed on this rule of law. Whether or not the
State breached this duty and whether or not any such breach was the
cause of Waldenls injuries were questions for the jury to decide.
The State's duties with regard to the design, construction,
and maintenance of Montana's highways apply equally to all
permitted users, regardless of the user's status. In other words,
automobilists, motorcyclists, bicyclists, pedestrians, and any
other permitted users all are entitled to highways that are
reasonably safe for ordinary use. Whether or not a given set of
circumstances comprises Ifordinary useI1 is a determination to be
made by the jury.
The appellant points to a guide published by the American
Association of State Highway and Transportation Officials (AASHTO)
and the Federal-Aid Highway Program Manual as authority for his
argument that the State owes a greater duty to maintain highways
for bicycle traffic than the jury instructions reflected. The
appellant interprets this literature as mandating that full
consideration be given to safely accommodating pedestrian and
bicycle traffic on all federal-aid highway projects. However,
giving "full considerationN does not translate into a mandatory
duty to bicyclists by the State greater than that upon which the
jury was instructed.
The AASHTO guide provides suidelines, not strict standards,
for the construction and design of bicycle routes. Furthermore,
the purpose of the guide is to I1provide information on the
development of new facilities to enhance and encourage safe bicycle
travel." Nowhere does the guide require the duty to bicyclists
that is suggested by the appellant. Likewise, the Department of
Transportation Manual does not mandate a State duty to maintain
its highways for bicyclists. The literature simply provides
guidance for enhancing the safety of motor vehicle and non-motor
vehicle traffic by planning for the potential conflict of the two
types of traffic.
As we stated in Jacobsen, 236 Mont. 91, 769 P.2d 694, a party
assigning error to the giving of jury instructions must show
prejudice in order to prevail. The appellant has failed to show
how the District Court's failure to give his Proposed Instruction
Nos. 21 and 51 has adversely affected his substantial rights. The
jury was properly instructed on the applicable law and Walden was
not denied instruction on his theory of the case. The omitted
language making specific reference to bicyclists was appropriately
covered by the other instructions.
The second issue raised by the appellant is whether the
District Court erred in giving Jury Instruction No. 39 regarding
the practicability and cost of highway repair. The instruction
read as follows:
A public entity is not liable for injury caused by
a dangerous condition of its property of which it had
actual or constructive notice if it establishes that the
action taken to protect against the risk of injury
created by the condition or the failure to take such
action was reasonable.
In determininq whether it was reasonable, you shall
consider the time and opportunity the defendant had to
take action and weight [sic] the probability and gravity
of potential injury to persons the defendant should have
foreseen might be injured against the practicability and
cost of protecting against the risk of such injury.
[Instruction No. 39; emphasis added.]
The appellant argues that this instruction provides the State
a financial feasibility defense. We disagree. The instruction
assists the jury in evaluating the llreasonablenessrl the State's
of
actions. The financial feasibility defense would provide the State
with a total escape from liability for failing to properly maintain
the highways, based solely on a lack of sufficient finances. This
defense has been rejected by our Court "when cost is the State's
sole excuse for its failure to construct or maintain properly."
Townsend v. State (1987), 227 Mont. 206, 210, 738 P.2d 1274, 1277.
In this case, the District Court also gave the jury the instruction
from Townsend clearly negating the financial feasibility defense.
It provided:
If you find that Defendant State of Montana was
negligent in planning, construction, signing or
maintaining the highway in question, you mav not excuse
the State's neqliqence on the around that proper
maintenance or lack of rsicl 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,
sign or maintain its highways in a reasonably safe
condition. [Instruction No. 27; emphasis added.]
The appellant argues that Instruction Nos. 39 and 27
contradict each other and leave the jury to consider a financial
feasibility defense. We do not agree. As this Court stated in
Modrell v. State (1978), 179 Mont. 498, 501, 587 P.2d 405, 406:
[Rleliance on cost as the sole and determining factor
would be tantamount to assertion of a financial
feasibility defense and therefore impermissible.
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 alterative taken.
The appellant's assertion that the State was provided a financial
feasibility defense is without merit. The State was entitled to
present evidence to the jury regarding the reasonableness of its
actions.
The third issue is whether the District Court erred in
refusing the appellant's challenge for cause of a prospective
juror. The prospective juror in question expressed his opinion of
lawsuits as cases where somebody is "trying to get a quick buck."
He expressed concern regarding the effect of too many lawsuits on
the economy of the nation and the State of Montana. He stated that
"1 would definitely make it harder on [the appellant] than I would
on the State, I'm sure." Counsel for the State attempted to
rehabilitate him by inquiring whether he would be able to set his
preconceived opinions aside and follow the court's instructions.
The prospective juror responded "Yes, I think I could do that."
During the voir dire examination he also stated, in response to an
inquiry from the State's counsel, that he thought the State of
Montana should be liable for its negligent acts if its negligent
acts cause injury to a person. The District Court denied the
appellant's challenge for cause and the appellant subsequently used
one of his peremptory challenges to remove the prospective juror.
The appellant contends that the prospective juror showed an
unqualified opinion or belief as to the merits of the action and
that the District Court should have excused him for cause under
5 25-7-223(6), MCA. He argues that the court's refusal to excuse
the prospective juror for cause was prejudicial error in that he
was compelled to waste one of his peremptory challenges.
The right to peremptory challenges is a substantial right but
not every case of the forced use of a peremptory challenge is
grounds for reversal. Abernathy v. Eline Oil Field Services, Inc.
(1982), 200 Mont. 205, 216, 650 P.2d 772, 778. In the past, this
Court's practice, in considering the trial court's refusal to
dismiss a prospective juror for cause, has been to reverse only
when there is shown an abuse of discretion on the part of the trial
court. Abernathv, 200 Mont. at 214, 650 P.2d at 777; Mahan v.
Farmers Union Cent. Exchange (1989), 235 Mont. 410, 417, 768 P.2d
850, 855; Tacke v. Vermeer Mfg. Co. (1986), 220 Mont. 1, 7, 713
P.2d 527, 531. It is appropriate at this time to clarify our
standard of review.
Rule 47(a), M.R.Civ.P., states as follows:
Examination of jurors. The court shall permit the
parties or their attorneys to conduct the examination of
prospective jurors under its supervision. The court may
supplement the examination by such further inquiry as it
deems proper. Challenqes for cause must be tried by the
court. The juror challenged and any other person may be
examined as a witness on the trial of a challenge.
[Emphasis added.]
Under Rule 47 (a), whether a prospective juror holds a preconceived
opinion as to the merits of the case or is biased or prejudiced
against one of the parties is a factual question to be tried by the
trial court. Thus, in reviewing the trial court Is decision to deny
a challenge for cause, this Court is reviewing a factual
determination made by the trial court.
Rule 52(a), M.R.Civ.P., provides that:
Findings of fact shall not be set aside unless clearly
erroneous, and due regard shall be given to the
opportunity of the trial court to judge of the
credibility of the witnesses.
Rule 52(a) itself refers only to findings of fact specially found
in actions tried without a jury or with an advisory jury. We have
stated that the findings of fact required by Rule 52(a) are
"nothing more than a recordation of the essential and determining
facts upon which the District Court rest[s] its conclusions of law
and without which the District Court's judgment would lack
support. 'I In re the Marriage of Barron (1978), 177 Mont. 161, 164,
580 P.2d 936, 938. Factual determinations made by the trial court
when entertaining a challenge for cause do not fall squarely within
the scope of Rule 52(a). However, because factual determinations
are being made by the trial court, the Itclearlyerroneousw standard
contained within the rule is the most appropriate standard for
reviewing the trial court's decision to deny a challenge for cause.
Therefore, in reviewing the trial court's refusal to excuse the
prospective juror for cause, we will reverse only where it is shown
that the court's findings are clearly erroneous.
In applying the clearly erroneous standard to the trial
court's findings, our function is not to decide the factual issues
de novo. We will not substitute our judgment for that of the trial
--
court absent a showing that the court's findings are clearly
erroneous, even where there is evidence in the record to support
contrary findings. Dennis v. Tomahawk Services, Inc. (1989), 235
Mont. 378, 379, 767 P.2d 346, 347. This is especially true when
findings are based on determinations regarding the credibility of
witnesses or, as in this case, the credibility of the prospective
juror. In such a situation, the trial court must be afforded wide
latitude in making its findings because the trial court is in a
better position than this Court to determine whether the
prospective juror is able to serve impartially. Only the trial
court has the opportunity of seeing the prospective juror, hearing
the testimony and noting the manner and demeanor of the prospective
juror and the inflections in his or her voice, all of which bear
heavily on the determination of credibility.
Turning to the particular facts of this case, our review of
the "cold recordw indicates that certain statements made by the
prospective juror, standing alone, could support a finding of bias
or prejudice. However, the prospective juror also stated that he
thought he could lay his opinions aside and follow the trial
court's instructions. The trial court had the opportunity to
observe the prospective juror and to listen to his testimony, and
based on its observations of his manner, demeanor and tone of
voice, found that he could serve impartially. We cannot conclude
that the trial court's finding was clearly erroneous; thus we find
no clear error on the part of the trial court.
The fourth issue raised by the appellant is whether he was
denied a fair trial as a result of the District Court's rulings on
the bicycle helmet issue.
The District Court denied Walden's motion in limine requesting
that the State be precluded from presenting evidence that Walden
was not wearing a helmet or that such nonuse of a helmet caused the
accident. At the conclusion of the evidence, Walden moved for a
directed verdict on the issue of helmet nonuse. This motion was
also denied.
The appellant argues that the District Court's denial of his
motions in limine and for a directed verdict unfairly allowed the
jury to conclude that the State's negligence was not the cause of
the appellant's injuries. We disagree.
Montana law does not require bicyclists to wear helmets; thus,
the failure to wear a helmet ordinarily does not constitute
negligence. Our decision in Kopischke v. First Continental Corp.
(1980), 187 Mont. 471, 610 P.2d 668, that negligence could not be
predicated upon the failure to wear a seat belt at a time when seat
belt use was not required, is instructive in this regard. The
issue in Kopischke was whether the trial court erred in not
allowing the defendant to introduce a seat belt defense. We
affirmed the trial court, holding that where the plaintiff could
not have anticipated the defendant's negligence in causing the
accident, the plaintiff's lack of use of a seat belt was not
admissible to show negligence or reduce damages. Under Kopischke,
the evidence concerning the appellant's failure to wear a helmet
was not admissible as to negligence. It was not admitted for that
purpose. Here, the District Court specifically instructed the jury
that the appellant's failure to wear a helmet was not a legal cause
of the accident and did not constitute negligence.
The evidence also was not admissible on the question of
damages under our holding in Ko~ischke. Thus, the District Court
erred in admitting the evidence. In rendering its verdict in this
case, however, the jury determined that any negligence of the State
was not a legal cause of the appellantls injury; it never reached
the question of damages. Thus, any error on the issue of helmet
nonuse was harmless and the appellant was not denied his right to
a fair trial.
The final issue raised is whether the District Court erred in
allowing the testimony of Professor Curtis Shirer.
Walden testified in his deposition that he had taken a bicycle
safety class at Montana State University. Professor Shirer was the
instructor and was called by the State to describe the course
material.
The appellant objected to much of Shirerls testimony on the
grounds that it was expert opinion testimony. The State's response
was that Shirer was a fact witness and was "not going to offer in
any way his opinion.l1
~pecifically, Walden objects to four items of Shirer's
testimony. Shirer testified that in his course: he taught the
absolute necessity of wearing a helmet when bicycle riding; he told
his students that the effect of falling off a bike without a helmet
on is much like taking a cantaloupe and tossing it into the air and
letting it hit the ground; he gave examples to his students of
friends of his that have had helmets save their lives in bicycle
accidents; and he told his students of studies that indicate 75
percent of all bicycle fatalities are head injuries.
This testimony was offered as a description of course material
Walden had taken at college. If, as asserted by the State, Shirer
was a fact witness testifying only about what he taught in the
bicycle course, then the State must present connecting facts to
show that Shirer taught Walden the material in order to establish
the relevancy of the testimony. Rules 104(b), 401, M.R.Evid. The
testimony indicated, however, that Shirer did not remember Walden;
nor did he recognize Walden after he was pointed out in the
courtroom. Furthermore, Shirer testified that some of the material
may have been taught in optional classes that Walden had not
attended. Under these circumstances, the testimony was not
relevant under Rule 401, M.R.Evid., and therefore, was not
admissible under Rule 402, M.R.Evid.
In any event, a nonexpert witness is generally limited to
testifying to matters of fact. Estate of Smith (1988), 230 Mont.
140, 749 P.2d 512. Shirerts testimony had very little factual
substance. Shirertsreference to tossing a cantaloupe into the air
and watching it hit the ground is not factual testimony. Simply
because this is material Shirer lectured on in his classes does not
make it factual testimony. The thrust of the testimony was not
the fact that he taught this material, but rather the material
itself; and this material was, to a large extent, Shirerlsopinion.
A lay witness' opinion must be helpful to a clear understanding of
his testimony or the determination of a fact in issue. Rule 701,
M.R.Evid. The descriptive picture painted by Shirerls testimony
failed to serve either of these purposes.
For these reasons, we find the District Court erred in
allowing Shirer to testify to the extent he did. The error did not
prejudice the appellant, however, since the evidence went only to
the question of damages and the jury decided the case solely on
the question of liability.
Affirmed.
We concur: //
Chief Justice
Justices
18
Justice William E. Hunt, Sr., dissenting.
I dissent from the majority's opinion and would remand this
case to the District Court for a new trial. The majority opinion
considered five issues on appeal. I would reverse on Issues 11,
111, and V.
ISSUE I1
Appellant contends the District Court's offering, over
objection, of Jury Instruction No. 39 regarding the practicability
and cost of highway construction and maintenance, constituted
reversible error. I agree.
The instruction at issue read as follows:
A public entity is not liable for injury caused by a
dangerous condition of its property of which it had
actual or constructive notice if it establishes that the
action taken to protect against the risk of injury
created by the condition or the failure to take such
action was reasonable.
In determinins whether it was reasonable, you shall
consider the time and opportunity the defendant had to
take action and weight [sic] the probability and gravity
of potential injury to persons the defendant should have
foreseen might be injured asainst the practicability and
cost of protectins asainst the risk of such injury.
[Emphasis added.]
In essence, this instruction provides the State with a
financial feasibility defense. This Court has previously held such
a defense is not available to the State. State ex rel. Byorth v.
District Court Mont . Byorth
indicated that such a defense was never available to a private
party and should not be available to the State. The financial
feasibility defense has been before this Court on two occasions
subsequent to Bvorth. Modrell v. State (1978), 179 Mont. 498, 587
P.2d 405; Townsend v. State (1987), 227 Mont. 206, 738 P.2d 1274.
In both decisions, this Court reaffirmed the Bvorth holding. The
following instruction, which was given in the present case as
Instruction No. 27, was approved of by this Court in both Modrell
and Townsend:
If you find that Defendant State of Montana was negligent
in planning, construction, signing 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 adeauate funds or an
adeauate number of emplovees is not a factor in the dutv
of the State to plan, construct, sisn or maintain its
hiqhwavs in a reasonably safe condition. [Emphasis
added. ]
Neither Modrell nor Townsend dealt with a jury instruction
similar to ~nstructionNo. 39. However, in both cases the issue
of a financial feasibility defense was raised at trial, contrary
to our holding in Bvorth. First in Modrell, then in Townsend, this
Court apparently approved the introduction of evidence concerning
the financial feasibility of various alternative courses of action
by the State. The Court indicated that although Bvorth was still
the law in Montana, cost could be considered in the jury's
determination of the reasonableness of the State's action in
constructing and maintaining its highways. It was this language
upon which the District Court understandably based its decision to
give the respondents' requested instruction concerning cost and
practicability, resulting in the clearly contradictory instructions
before the jury. Thus, the jury was told on the one hand that cost
or financial feasibility was not a defense to any negligence by the
State, while at the same time they were instructed to consider cost
in determining if the State's actions were reasonable, i.e.,
negligent or not negligent. As Justice John C. Sheehy correctly
pointed out in his dissent in Modrell:
I am also of the opinion that there is an irreconcilable
conflict between the holding in the majority opinion and
our holding in the Bvorth case. In Bvorth, this Court
stated if the State failed to discharge its duty to
construct reasonably safe highways, and that failure
resulted in injury, the State was liable "regardless of
[its] personal financial priorities." 572 P.2d at 203.
Yet here we are stating that financial priorities are a
"factorw in determining negligence. Thus we now accord
the State what was condemned in Bvorth, "a defense a
private party never had." 572 P.2d at 203.
Modrell, 587 P.2d at 410.
Faced with these contradictory instructions given by the trial
court there was no way for the jury to determine if cost was or was
not a proper factor for their consideration in determining if the
State was negligent. I am persuaded this Court's original analysis
set forth in Byorth was correct and that financial feasibility
should not be a factor in determining whether the State planned,
constructed, or maintained its highways in a negligent manner.
ISSUE I11
The third issue considered by the majority concerned the
District Court's refusal of appellant's challenge for cause of a
prospective juror. I accept the majority's decision that the
proper standard of review in this situation should be a clearly
erroneous standard. However, even when reviewing the trial court's
decision under this standard, which requires this Court to defer
to the decision below unless clearly erroneous, I would reverse on
this issue.
The Montana Constitution, art. 11, 5 26, guarantees the right
to a jury trial, and as we have previously stated "[c]oncomitant
with that right is the right to a fair and impartial jury.'' Mahan
v. Farmers Union Central Exchange (1989), 235 Mont. 410, 418, 768
P.2d 850, 855. A prospective juror who has demonstrated Itan
unqualified opinion or belief as to the merits of the action ... 11
is subject to a challenge for cause. Section 25-7-223 (6), MCA.
Additionally, the statute provides that a challenge for cause is
proper in light of statements by the prospective juror "evincing
enmity against or bias in favor of either party." Section
25-7-223 (7), MCA.
The statements made by the prospective juror in this case
clearly fall within the statutory criteria for excluding a juror
for cause. Even after attempted rehabilitation, the juror was only
able to say that he thousht he could be impartial and follow the
law. This is clearly insufficient. After appellant's challenge
for cause, the prospective juror continued to demonstrate enmity
against appellant's action and bias in favor of the State.
Appellant was entitled to have this juror dismissed for cause in
light of the juror's candid admissions of an unqualified opinion
22
and belief as to the merits of the action. Appellant was forced
to use a peremptory challenge to disqualify the juror. Appellant
used all of his peremptory challenges.
The majority correctly points out that it is reversible error
when the trial court, in an abuse of discretion, fails to properly
dismiss a juror for cause. Abernathy v. Eline Oil Field Services,
Inc. (1982), 200 Mont. 205, 216, 650 P.2d. 772, 778. This
principle is unaffected by the majority's adoption of the clearly
erroneous standard in place of the abuse of discretion standard.
I would reverse on this issue.
ISSUE V
I agree with the majority's analysis of the testimony offered
by respondents witness, Shirer, inasmuch as the majority found the
testimony was error. However, the testimony in question was
extremely prejudicial and I would, therefore, reverse and remand
for a new trial.
I concur with the foregoing dissent of Justice Hunt.