NO. 90-251
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
CHARLES L. HASH, Personal
Representative of the Estate
of MICHAEL M. SCOTT, and
DEBBIE JO SCOTT,
Plaintiffs and Appellants,
THE STATE OF MONTANA, CLERK OF SUPREME COUR-;
STATE OF MONTANA
a body politic,
Defendant and Respondent.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Leif B. Erickson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Kenneth E. OIBrien; Hash, OIBrien & Bartlett,
Kalispell, Montana
For Respondent:
John Maynard, Chief Defense Counsel, Tort Claims
Division, Dept. of Administration, Helena, Montana
I. James Heckathorn; Murphy, Robinson, Heckathorn
& Phillips, Kalispell, Montana
Submitted on Briefs: November 15, 1990
~ecided: March 21, 1991
Filed:
Justice John Conway Harrison delivered the Opinion of the Court.
Plaintiffs, Charles L. Hash, personal representative of the
estate of Michael M. Scott, and Debbie Jo Scott, appeal from a
judgment entered against them and in favor of defendant, State of
Montana, after a jury trial in the District Court of the Eleventh
Judicial District, Flathead County, Montana. We affirm.
Plaintiffs raise the following issues:
1. Did the District Court err in denying plaintiffs' motions
for a directed verdict and for judgment notwithstanding the
verdict?
2. Did the District Court err in giving two jury instructions
to which plaintiffs objected?
On September 22, 1984, an early fall storm commenced in the
vicinity of Marias Pass. By September 24, nine and one-half inches
of snow had fallen. The snow that accumulated on U.S. Highway No.
2 was plowed by the Montana Highway Department maintenance crew.
Plowing deposited a berm of snow on the edge of the roadway under
the guardrail at milepost 194.4. The road at this point is curved
and traverses uphill from west to east at approximately a four and
one-half percent grade. The curve has an approximate three percent
downhill slope from south to north. Narrow canyon walls shade the
area until late in the morning and again late in the afternoon.
On Monday, October 1, 1984, a United States Forest Service
pickup driven by Johnny Flagget was eastbound on his way toward the
top of Marias Pass. At approximately 8:55 a.m., when the Flagget
vehicle entered the curve at milepost 194.4 it struck a patch of
black ice, spun out of control, crossed the centerline and collided
with a westbound automobile driven by Michael Scott. Mr. Scott
was killed and his wife Debbie, a passenger in the vehicle, was
seriously injured.
At the time of the accident, black ice covered both east and
westbound lanes of the highway and extended for several hundred
feet. The ice was immediately opposite and downhill from the snow
berm which was four inches thick on the morning of the accident and
located on the high side of the curve. The section of the highway
where the curve is located was not patrolled by the maintenance
crew that day nor was there any sand on the roadway or warning
signs in the immediate vicinity of the accident. Investigators
determined the ice formed when the snow berm melted during the day
causing water to run across the roadway which then froze when the
temperature dropped in the evening.
On July 14, 1987, plaintiffs filed a complaint in the Eleventh
Judicial District Court, Flathead County, seeking to recover
damages against the State. The complaint alleged that the State
was negligent in maintaining or monitoring the highway near the
accident scene. Trial commenced on November 22, 1989. Plaintiffs1
motion for a directed verdict at the close of the State's evidence
was denied and the jury found for the State. Plaintiffs then moved
the court, pursuant to Rule 50(b), M.R.Civ.P., for judgment
notwithstanding the verdict, or in the alternative, a new trial.
The District Court denied this motion. Plaintiffs now appeal.
I
Did the District Court err in denying plaintiffs' motions for
a directed verdict and for judgment notwithstanding the verdict?
The standard of review in an appeal from a denial of a motion
for judgment notwithstanding the verdict made pursuant to Rule
50(b), M.R.Civ.P., is the same as that for review of a motion for
a directed verdict, and a directed verdict may be granted only when
it appears as a matter of law that the non-moving party could not
recover upon any view of the evidence, including the legitimate
inferences to be drawn from it. Wilkerson v. Sch. Dist. No. 15,
Glacier Cty. (1985), 216 Mont. 203, 211, 700 P.2d 617, 622. This
Court's function on appeal is to review the evidence in a light
most favorable to the prevailing party to determine whether
substantial evidence supports the jury's verdict. Sizemore v.
Montana Power Co. (Mont. 1990) , P.2d -, , 47 St.Rep. 2252,
2256. This Court cannot reweigh the evidence or disturb the
findings of a jury unless that evidence is so inherently impossible
or improbable as not to be entitled to belief. Sizemore, 47
St.Rep. at 2256.
Plaintiffs assert that the jury instructions, when related to
the facts of the instant case, conclusively establish negligence
on the part of the State which could not be overlooked by the jury.
The District Court instructed the jury that the black ice at the
accident scene constituted a hazardous condition and that when such
a condition is created or maintained by the State, it is not
necessary to show, as a condition precedent to liability, that the
State had notice of the condition for a sufficient length of time
to remedy it. The court further instructed the jury that inherent
in the State's duty of care, when the State knows or in the
exercise of reasonable care should know of a hazardous condition,
is the alternative duty to either eliminate the condition or to
post adequate signs warning of the hazard if the condition cannot
be immediately corrected. In determining whether the State
exercised reasonable care the jury was instructed to consider all
surrounding circumstances including the state of the art, the
priorities set by the State, the methods of maintenance and
practical alternatives.
The State is not an insurer of one who uses the highways.
State ex rel. Bjord v. District Court (1977), 175 Mont. 63, 67, 572
P.2d 201, 203. However, the State is under a duty to keep its
highways in a reasonably safe condition. Buck v. State (1986), 222
Mont. 423, 429, 723 P.2d 210, 214. The State's duty to keep its
highways in a reasonably safe condition extends to the paved
portion of the roadway, to the shoulders and the adjacent parts
thereof, including guardrails, or bridge abutments. Buck
P
I 222
Mont. at 429, 723 P.2d at 214. What constitutes a reasonably safe
condition is generally considered to be a question of fact. Kaiser
v. Town of Whitehall (1986), 221 Mont. 322, 327, 718 P.2d 1341,
1344; Limberhand v. Big Ditch Co. (1985), 218 Mont. 132, 144, 706
P.2d 491, 498.
In this case the accident occurred in an area which is part
of a twenty-nine mile section of highway maintained by a four-
member maintenance crew. Crew members testified the highway was
plowed in the usual manner and it was inevitable that some snow
would be left on the shoulders of the roadway and under guardrails.
There was testimony that snow along the shoulders of the roadway
and under guardrails is common during the winter months on all
Montana roads and that this does not, in and of itself, create a
hazardous driving condition. Crew members also testified that
there was no practical alternative to the way the snow was removed
from the roadway due to the type of equipment available, risks to
the travelling public, and the number of labor-hours required.
In support of their argument that the State was negligent
plaintiffs point to the Highway Department's maintenance manual
which prohibits plowing snow to the high side of a curve when
possible. However, the jury was instructed that it was up to it
to decide if violations of the maintenance manual constituted
negligence on the part of the State under the circumstances
presented. This is in accord with Townsend v. State (1987), 227
Mont. 206, 738 P.2d 1274, in which we held that violations of the
maintenance manual is evidence of negligence but is not negligence
per se.
The entire twenty-nine mile section of highway was patrolled
by the maintenance crew during the work week immediately preceding
the day of the accident. Testimony regarding the road conditions
during this time was that by September 28 the road was bare and dry
throughout the entire section. The maintenance crew took the
weekend off. However, on Saturday, September 29, two members of
the crew travelled over the road while off duty and did not see any
wet or icy spots.
On the morning of September 30, an accident occurred at the
6
same site where the Scott accident was to occur the following
morning. This accident was investigated by Highway Patrol Officer
Vollrath. Plaintiffs argue that the State had notice of the
existing icy conditions through Officer Vollrath's investigation
of the accident. Officer Vollrath testified that when he arrived
at the scene of the accident the roadway was icy and when he left
it was wet. He did not notify the maintenance crew of the
condition of the road because he did not believe there was a
potential for danger. He stated the weather was warm enough that
he did not need a coat and he believed that the water would
evaporate off the highway. He further testified that during the
eight years he was stationed at East Glacier he had often seen
water on the roadway and snow under or over the top of the
guardrails and that water on a corner does not necessarily
constitute a hazard.
Anthony Babcock, acting crew foreman on the day of the
accident, testified that the highway was not patrolled on that day
because the weather had warmed up to a point where he felt a patrol
was not needed. Arthur Little, maintenance superintendent,
testified that the decision of whether or not to patrol the highway
on a particular day is a judgment call based on the weather. The
crew members all testified that before the accident they had never
encountered the situation where only one curve of the highway was
icy while the remainder of the section was bare and dry.
These facts rise to the level of substantial evidence required
to support the jury's verdict. The evidence established a
reasonable basis for which an honest difference of opinion could
arise on the question of negligence on the part of State under the
circumstances presented. Accordingly, we hold the District Court
did not err denying motions for a directed verdict
and for judgment notwithstanding the verdict.
Did the District Court err in giving two jury instructions to
which plaintiffs objected?
Plaintiffs1 first argument is directed to Instruction No. 23
which provides:
You may not consider evidence of conduct of the
State in patrolling the highway after October 1, 1984,
as any evidence of negligence or culpable conduct on the
part of the State.
Plaintiffs assert that testimony of subsequent patrol was
introduced to impeach maintenance foreman Babcockls reason for
failure to patrol on the day of the accident and the District Court
erred in giving Instruction No. 23 in that it effectively advised
the jury that it should not consider this evidence.
Rule 407, M.R.Evid., addresses subsequent remedial measures
and states:
When, after an event, measures are taken which, if
taken previously, would have made the event less likely
to occur, evidence of the subsequent measures is not
admissible to prove negligence or culpable conduct in
connection with the event. This rule does not require
the exclusion of evidence of subsequent measures when
offered for another purpose, such as proving ownership,
control, or feasibility of precautionary measures, if
controverted, or impeachment.
It seems clear that patrolling the highway after the date of the
accident was a measure which, if taken previously, would have made
the accident less likely to occur. The District Court properly
instructed the jury that it could not consider this as evidence of
negligence or culpable conduct on the part of the State. Although
the testimony of subsequent patrol could not be considered as
evidence of negligence or culpable conduct on the part of the
State, it was admitted into the record and could be considered by
the jury for another purpose. We hold there was no error in giving
Instruction No. 23.
Plaintiffs next contend that the District Court erred in
giving Instruction No. 14 and refusing plaintiffs' proposed
Instruction No. 45. Instruction No. 14 reads as follows:
The State of Montana is not an insurer of the safety
of persons who use the highways.
A state must exercise reasonable care to keep the
highways over which it has exclusive control reasonably
safe for travel.
Inherent in the duty of reasonable care to be
exercised by the defendant, State of Montana, when it
knows or in the exercise of reasonable care should know
of a hazardous condition, is the alternative duty either
to eliminate hazardous conditions or to post adequate and
appropriate signs to warn the travelling public of their
presence if the conditions cannot be immediately
corrected.
Plaintiffs argue the court erred in that this instruction
submitted to the jury the issue of whether the State knew or, in
the exercise of reasonable care, should have known of the hazardous
condition. Plaintiffs maintain that under the facts established
by the record the State created the condition and the highway
patrol had knowledge of the condition; therefore, the State would
be charged with notice as a matter of law. Plaintiffs' proposed
instruction would have instructed the jury that under the facts of
this case the State was presumed to have knowledge of the existing
icy conditions.
Jury instructions on appeal are to be viewed in their entirety
and in light of the evidence presented. Pipe Indus. Ins. Fund
Trust v. Consol. Pipe Trades Trust (1988), 233 Mont. 162, 168, 760
P.2d 711, 715. Our review of the jury instructions in their
entirety shows that ~nstructions Nos. 18 and 21 sufficiently
instructed the jury in accordance with plaintiffs' theory of the
case. We hold there was no error in giving Instruction No. 14.
Af fi n n e d .
We concur:
- Justices
-.
.-
Justice William E. Hunt, Sr., dissenting:
I dissent. In denying the plaintiffs8 motion for judgment
notwithstanding the verdict or, alternatively, for a newtrial, the
District Court stated that it was "hard pressed to understand how
the jury, under the facts and law presented, could have found for
the [dlefendant . . . . l8 I, too, am hard pressed to understand
such a verdict.
The District Court instructed the jury as follows:
INSTRUCTION NO. 19
You are instructed that the State should be held liable
for any injuries or death caused by a dangerous condition
existing on its highways where such dangerous condition
was created by the State or its employees.
It was uncontroverted that the dangerous condition that caused
the accident in this case was a patch of ice on the highway that
was formed by snow melting from a snow berm located on the high
side of a super elevated curve. It was also uncontroverted that
the snow berm was created by state highway department employees
when they plowed snow from the highway onto the high side of the
curve, despite the fact that the highway department's maintenance
manual specifically prohibited such activity.
The court also instructed:
INSTRUCTION NO. 18
You are instructed that where a hazardous condition
exists on a highway and such hazard was created or
maintained by the public authority it is not necessary
to show as a condition precedent to liability that the
public authority had notice of such condition for a
sufficient length of time to remedy it.
This instruction charged the State with notice of the
hazardous condition if the condition was created or maintained by
the State. As I pointed out above, no one contested the fact that
the State created the hazardous condition by plowing snow on the
upper side of a super elevated curve. The highway department
manual itself warned of the dangers that could result from plowing
snow in this manner by providing:
Snow should not be deposited or allowed to accumulate on
the high side of super elevated curves, as this may cause
a dangerous situation when the snow thaws. Water may run
across the roadway, freezing as the temperature drops.
All snow should be plowed from the upperside of the
curves, when possible, to help avoid icy conditions.
Despite this provision in the manual, the State argued that it
could not have foreseen the accident that occurred on this curve.
As the saying goes, I1Giveme a break!
The court further instructed the jury:
INSTRUCTION NO. 14
The State of Montana is not an insurer of the safety of
persons who use the highways.
A state must exercise reasonable care to keep the
highways over which it has exclusive control reasonably
safe for travel.
Inherent in the duty of reasonable care to be exercised
by the defendant, State of Montana, when it knows or in
the exercise of reasonable care should know of a
hazardous condition, is the alternative duty either to
eliminate hazardous conditions or to post adequate and
appropriate signs to warn the travelling public of their
presence if the conditions cannot be immediately
corrected.
This instruction required the State, once it had notice of the
hazardous condition, to exercise reasonable care by either
eliminating the danger or posting warning signs. The instruction
provided that actual knowledge of the danger was not required, that
constructive knowledge was adequate. As I pointed out above, the
highway department manual put the crew members on notice of
precisely the type of hazard created by snow piled along the side
of a super elevated curve. Even though it may not have been
possible to remove the snow berm, as the crew members testified,
the instruction mandated the State to warn the public that the
hazard existed. Having failed to warn, the State was liable for
the accident.
The jury was also instructed:
INSTRUCTION NO. 21
Where the highway patrol discovers a hazardous condition,
such as an icy road, and there is a reasonable
possibility of impending danger to users of the highway,
he has a duty to take precautionary methods to prevent
such danger.
This instruction and the highway patrol officer's testimony
were red herrings. Whether Officer Vollrath thought the area was
hazardous is not at issue here because it has already been
established that the State had either actual or constructive
knowledge of the hazardous condition through the highway department
employees who created the hazard.
The facts of this case and the instructions established that
the State, through the highway department crew members, had a duty
to the public to exercise reasonable care to keep the highways in
a reasonably safe condition. The State breached this duty by
creating a dangerous condition, a snow berm on a super elevated
curve. The State was charged with the knowledge of this condition
because it created the condition. The foreseeability of the hazard
was acknowledged by the highway department crew members as well as
by the department manual. The State failed to either eliminate
the hazard or post signs warning of the danger, thus incurring
liability as a matter of law.
While we are required to give great deference to the jury's
findings, there are times when the facts as applied to the
instructions can lead to but one conclusion. Here, we have such
a case. The evidence so overwhelmingly points toward the State's
liability that any other conclusion can only be attributed to a
misapplication of the law of the case.
I would reverse the District Court and remand for entry of
judgment notwithstanding the verdict on the issue of liability and
a new trial on the issue of damages.
Justice
I concur in the foregoing dissent of Justice William E. Hunt,
Sr.
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