Modrell v. State

No. 13808

IN THE SUP= CCURT O THE S A E O II J I N
F T T F JOVA A'

1978

P l a i n t i f f and Appellant,

-VS-

THE STATE O MONTANA,
F

Defendant and Respondent.

Appeal fran: D i s t r i c t Court of the F i r s t Judicial D i s t r i c t ,
Honorable Gordon R. Bennett, J d g e presiding.

For Appellant:

R o b e r t T. Cumnins argued, H e l e n a , Wntana
Jackson and Kelly, Helena, Mntana
Gregory Jackson argued, Helena, mntana
Sam Levinson, Seattle, Washington

For Respondent:

Keller, Reynolds and Drake, Helena, Mntana
K e i t h Keller argued, H e l e n a , Wntana

SWtted: October 10, 1978
Decided: -
- r-
7
3978
Filed: -, !

&bpg&y Clerk
Mr. J u s t i c e John Conway H a r r i s o n d e l i v e r e d t h e Opinion of
t h e Court.

P l a i n t i f f a p p e a l s from a j u r y v e r d i c t and judgment f o r

d e f e n d a n t ( t h e S t a t e of Montana) i n a p e r s o n a l i n j u r y a c t i o n

tried i n ~ e w i s
and C l a r k County D i s t r i c t C o u r t . The s a l i e n t

f a c t s follow.

P l a i n t i f f i s a r e s i d e n t of S e a t t l e , Washington. In

O c t o b e r , 1973, h e came t o Montana t o h u n t w i t h a f r i e n d ,

McCandless, who l i v e d i n Big Fork, Montana. The two men,

accompanied by McCandless' 1 y e a r o l d s o n , t r a v e l e d i n
1

McCandless' p i c k u p from K a l i s p e l l t o e a s t e r n Montana where

t h e y hunted d e e r and a n t e l o p e . On October 23, 1973, p l a i n -

t i f f and h i s companions l e f t an a r e a n e a r Broadus, Montana,

t o d r i v e t o t h e Radersburg a r e a t o h u n t e l k . McCandless w a s

d r i v i n g and h i s son and p l a i n t i f f w e r e p a s s e n g e r s i n t h e

p i c k u p cab. The v i s a b i l i t y was c l e a r , t h e r o a d d r y , and no

other vehicles w e r e i n sight. Approximately t h r e e m i l e s

w e s t of Broadus, on a s t r a i g h t , s l i g h t l y g r a d e d u p h i l l

s t r e t c h of Highway 212, t h e v e h i c l e moved t o t h e r i g h t , i t s

r i g h t wheels d r o p p i n g a b o u t n i n e i n c h e s o n t o t h e i n s l o p e

( t h e o u t s i d e edge of t h e pavement). In returning t o the

pavement, t h e v e h i c l e went o u t of c o n t r o l , s k i d d i n g d i a g o n a l l y

a c r o s s b o t h l a n e s and r o l l i n g o v e r o n t o i t s t o p i n t h e

ditch.
S h o r t l y t h e r e a f t e r , a highway p a t r o l m a n a r r i v e d a t t h e

scene. A t trial he t e s t i f i e d t h a t during t h e ensuing inves-
t i g a t i o n , McCandless informed him t h a t he w a s w a t c h i n g some
a n t e l o p e when t h e p i c k u p l e f t t h e pavement. The o f f i c e r
reported t h e cause of t h e accident a s " d r i v e r negligence".

During t r i a l , v a r i o u s e x p e r t t e s t i m o n y w a s t a k e n re-

v e a l i n g a d i v e r s i t y of o p i n i o n r e g a r d i n g t h e r e a s o n a b l e
 s a f e t y of t h e r o a d ' s d e s i g n and maintenance. Numerous

e x h i b i t s w e r e r e c e i v e d i n t o e v i d e n c e showing d i f f e r e n t

s t a n d a r d s f o r t h e c o n s t r u c t i o n and s a f e t y of r o a d s i d e

s h o u l d e r s and i n s l o p e s .

P l a i n t i f f r a i s e s two i s s u e s f o r o u r review:

1. Whether t h e D i s t r i c t C o u r t e r r e d i n a d m i t t i n g

t e s t i m o n y by t h e S t a t e i n s u p p o r t of t h e d e f e n s e of f i n a n -

cial feasibility?

2. Whether t h e e v i d e n c e of t h e S t a t e ' s n e g l i g e n c e

c l e a r l y p r e p o n d e r a t e s a g a i n s t t h e v e r d i c t and judgment i n

i t s favor?

P l a i n t i f f c o n t e n d s t h e S t a t e ' s " s o l e and e x c l u s i v e "

d e f e n s e was t h a t of f i n a n c i a l f e a s i b i l i t y which, under S t a t e

e x r e l . Byorth v. D i s t r i c t C o u r t ( 1 9 7 7 ) , Mont. I

572 P.2d 201, 34 S t - R e p . 1447, t h e D i s t r i c t C o u r t e r r e d i n

admitting.

I n B y o r t h , t h i s C o u r t a c t i n g under i t s s u p e r v i s o r y

a u t h o r i t y upheld t h e D i s t r i c t C o u r t ' s d e n i a l of S t a t e ' s

motion f o r l e a v e t o amend i t s answer w i t h (among o t h e r s ) t h e

d e f e n s e of n o n r e s p o n s i b i l i t y "due t o l a c k of f u n d s t o con-

s t r u c t and m a i n t a i n s a f e t y f e a t u r e s a t t h e s i t e of t h e

accident." Byorth, 572 P.2d a t 202. I n s o holding we

stated:

"As n o t e d , t h e T o r t Claims Act a t t a c h e s l i a b i l i t y
t o t h e S t a t e i n t h e same manner and t o t h e same
e x t e n t t h a t l i a b i l i t y a t t a c h e s t o a p r i v a t e person.
S e c t i o n 82-4302(7). There i s no common o r s t a t u t -
o r y law which p e r m i t s t h e d r i v e r of a b r a k e l e s s
c a r t o p l e a d he c o u l d n o t a f f o r d b r a k e s b e c a u s e
h e had d e c i d e d it was more i m p o r t a n t t o pay h i s
grocery b i l l . When h e d r i v e s , t h e m o t o r i s t assumes
t h e d u t y of d r i v i n g a s a f e car. I f h e f a i l s
t o d i s c h a r g e t h a t d u t y and t h a t f a i l u r e r e s u l t s
i n i n j u r y he i s l i a b l e , r e g a r d l e s s of h i s
personal f i n a n c i a l p r i o r i t i e s . So, t o o , w i t h
t h e S t a t e . Whenever and wherever it c h o o s e s
t o b u i l d highways i t assumes t h e d u t y of b u i l d i n g
and m a i n t a i n i n g them s a f e l y and i s a n s w e r a b l e
 i f it f a i l s t o d o s o . T h i s d o e s n o t , a s argued
by r e l a t o r , make t h e S t a t e a n i n s u r e r any more
t h a n i t makes a p r i v a t e p a r t y an i n s u r e r . The
n e g l i g e n c e o f t h e S t a t e must s t i l l be proven.
I t simply w i t h h o l d s from t h e S t a t e a d e f e n s e
a p r i v a t e p a r t y n e v e r had." Byorth, 572 P.2d
a t 203.

W e c a n , however, c a r r y t h i s a n a l o g y o n l y s o f a r . The S t a t e ' s

d u t y t o m a i n t a i n and d e s i g n s a f e highways i s d i f f e r e n t t h a n

t h e duty of a d r i v e r t o d r i v e a s a f e c a r . C l e a r l y , evidence

of a d r i v e r ' s d e c i s i o n t o pay f o r g r o c e r i e s b e f o r e b r a k e s i s

i r r e l e v a n t on t h e i s s u e of a n a l l e g e d l y breached d u t y of

care. I t h a s no l e g a l b e a r i n g on t h e c o u r s e of c o n d u c t

taken. But t h e d u t y of t h e S t a t e t o c o n s t r u c t and m a i n t a i n

roadways i n a r e a s o n a b l y s a f e c o n d i t i o n s t a n d s on a d i f -

ferent footing. F a c t o r s e n t e r i n g i n t o t h e d e c i s i o n t o elect

one a l t e r n a t i v e over another a r e r e l e v a n t t o t h e e x t e n t t h a t

t h e y b e a r a s e v i d e n c e on t h e r e a s o n a b l e n e s s of t h e d e c i s i o n .
The a l t e r n a t i v e s e l e c t e d must be r e a l i s t i c , v i a b l e and

subject t o state-of-the-art limitations. Obviously, c o s t

must be a f a c t o r .

To be s u r e , r e l i a n c e o n c o s t a s t h e s o l e and d e t e r -

mining f a c t o r would be tantamount t o a s s e r t i o n of a f i n a n -

c i a l f e a s i b i l i t y d e f e n s e and t h e r e f o r e i m p e r m i s s i b l e . How-

e v e r , where c o s t i s b u t o n e among many f a c t o r s a f f e c t i n g t h e

S t a t e ' s c h o i c e of a p a r t i c u l a r method of c o n s t r u c t i o n o r

m a i n t e n a n c e , it i s r e l e v a n t e v i d e n c e on t h e r e a s o n a b l e n e s s

of t h e a l t e r n a t i v e t a k e n .
P l a i n t i f f h e r e c o n t e n d s t h a t " s i n c e it [ f i n a n c i a l
f e a s i b i l i t y ] w a s n o t a p r o p e r d e f e n s e , i t was n o t a p r o p e r
s u b j e c t of testimony." W e do n o t a g r e e w i t h t h i s s t a t e m e n t .

C e r t a i n l y t h e S t a t e was e n t i t l e d t o i n t r o d u c e e v i d e n c e

r e l e v a n t t o the reasonableness of i t s c o n d u c t i n c h o o s i n g
t o d e s i g n , m a i n t a i n , and r e p a i r t h e s t r e t c h of Highway 212
a s it did. W e have reviewed t h e i n s t a n c e s c i t e d w h e r e i n

c o s t t e s t i m o n y was a d m i t t e d and f i n d none e f f e c t i v e l y

amounts t o a s s e r t i o n of a f i n a n c i a l f e a s i b i l i t y d e f e n s e .

Moreover, t h e j u r y was e f f e c t i v e l y i n s t r u c t e d t h a t
f i n a n c i a l f e a s i b i l i t y was n o t a d e f e n s e . I n s t r u c t i o n No. 8

read:

" I f you f i n d t h e d e f e n d a n t n e g l i g e n t i n
planning o r constructing o r maintaining the
highway i n q u e s t i o n , you may n o t e x c u s e such
n e g l i g e n c e on t h e ground t h a t p r o p e r con-
s t r u c t i o n was beyond t h e f i n a n c i a l means of t h e
S t a t e . C o s t i s n o t a f a c t o r i n t h e d u t y of
t h e S t a t e t o p l a n , c o n s t r u c t and m a i n t a i n i t s
highways i n a r e a s o n a b l y s a f e c o n d i t i o n . "

The i n s t r u c t i o n p r o p e r l y f o l l o w s t h e sequence of d e t e r -

m i n a t i o n s c o n t e m p l a t e d by t h e l a w of n e g l i g e n c e . A finding

of n e g l i g e n c e o r t h a t a d u t y of c a r e was b r e a c h e d w i t h

r e s p e c t t o p l a i n t i f f n e c e s s a r i l y p r e c e d e s t h e a s s e r t i o n of

a n a f f i r m a t i v e d e f e n s e by t h e S t a t e . Without n e g l i g e n c e

l e g a l a c c o u n t a b i l i t y cannot follow. The i n s t r u c t i o n was,

a c c o r d i n g l y , p r e d i c a t e d upon a f i n d i n g of n e g l i g e n c e .

The Byorth d e c i s i o n p r e c l u d e s t h e S t a t e from r e l y i n g on

f i n a n c i a l i n a b i l i t y as a defense t o a negligence a c t i o n , b u t

it d o e s n o t f o r b i d t h e S t a t e from e v e r m e n t i o n i n g c o s t s a s a

f a c t o r b e a r i n g on t h e r e a s o n a b l e s s of i t s c o n d u c t . Here,

d e s p i t e r e p e a t e d a t t e m p t s , t h e d e f e n s e was n o t r e c e i v e d by

the court. N such defense appears i n t h e pleadings.
o At

t r i a l , t h e S t a t e was presumably showing t h a t it was n o t

n e g l i g e n t i n i t s d e s i g n and maintenance of Highway 212 and
t h e r e f o r e presented evidence regarding t h e f a c t o r s e n t e r -
i n g i n t o t h e d e c i s i o n t o r e s u r f a c e t h e road i n a p a r t i c u l a r

manner, i . e . , w i t h pavement o v e r l a y s . Obviously, one s u c h
factor w a s cost.
 P l a i n t i f f n e x t c o n t e n d s t h e e v i d e n c e c l e a r l y prepon-

derates against a verdict for the State. Reciting c e r t a i n

e x p e r t t e s t i m o n y and e x h i b i t s produced a t t r i a l , p l a i n t i f f

r e i t e r a t e s t o t h i s C o u r t t h a t t h e S t a t e f a i l e d t o meet

r e a s o n a b l e s t a n d a r d s of s a f e t y and knew it. The S t a t e , on

t h e o t h e r hand, p o i n t s o u t t h a t t h e e x p e r t t e s t i m o n y was i n

c o n f l i c t a s t o t h e a p p r o p r i a t e s t a n d a r d s and t h e S t a t e ' s

compliance t h e r e w i t h . I t a l s o c o n t e n d s t h e j u r y c o u l d have

found t h e S t a t e n e g l i g e n t b u t t h a t i t s n e g l i g e n c e was n o t

t h e p r o x i m a t e c a u s e of p l a i n t i f f ' s i n j u r y .

W do n o t i n d u l g e i n c o n j e c t u r e e i t h e r way.
e Plaintiff

h a s t h e burden of p r o v i n g h i s c a s e a t t r i a l by a preponder-

a n c e of t h e e v i d e n c e . Our f u n c t i o n i n r e v i e w i n g t h e j u r y ' s

v e r d i c t i s t o d e t e r m i n e whether t h e r e w a s no s u b s t a n t i a l

c r e d i b l e e v i d e n c e t o s u p p o r t t h e v e r d i c t and judgment when

viewed i n a l i g h t most f a v o r a b l e t o t h e p r e v a i l i n g p a r t y .

W do n o t r e t r y f a c t u a l i s s u e s .
e Since t h e e x p e r t testimony

and documentary e v i d e n c e i n t h i s c a s e e x p r e s s e d a d i v e r s i t y

and c o n f l i c t of o p i n i o n c o n c e r n i n g t h e a p p r o p r i a t e s t a n d a r d s

of c o n d u c t a p p l i c a b l e t o t h e S t a t e , i t c a n n o t be s a i d t h e

e v i d e n c e s u p p o r t i n g t h e v e r d i c t was " s o i n h e r e n t l y impos-

s i b l e o r improbable a s n o t t o be e n t i t l e d t o b e l i e f . "

B e r d i n e v . S a n d e r s County ( 1 9 7 4 ) , 164 Mont. 206, 209, 520

P.2d 650, 651, ( q u o t i n g Wallace v . Wallace ( 1 9 2 9 ) , 85 Mont.

492, 502, 279 P. 374, 3 7 7 ) . By t h e same t o k e n , t h e j u r y i s

e n t i t l e d t o c o n c l u d e what t h e y w i l l as t o t h e p r o x i m a t e

c a u s e of p l a i n t i f f ' s i n j u r y s o l o n g a s s u b s t a n t i a l e v i d e n c e
e x i s t s t o support t h e i r conclusion. P l a i n t i f f here asks us

t o view c e r t a i n e v i d e n c e f a v o r a b l e t o him and d e c i d e b o t h

whether t h e S t a t e b r e a c h e d a d u t y of c a r e t o him and whether
s u c h was t h e p r o x i m a t e c a u s e o f h i s i n j u r y . That i s t h e

f u n c t i o n of t h e jury.

The v e r d i c t and judgment o f t h e D i s t r i c t C o u r t i s

a £f i r m e d .

1

J u s t i v

W e Concur:

Chief J u s t i c e

pw
d ~ Justi &4L?l
Mr. Justice John C. Sheehy dissents:
I am unable to agree with the result in this appeal.

An additional statement of facts is necessary to
understand the issues facing the Court here.
On the date of the accident, plaintiff was riding as a
passenger in a Chevrolet pickup truck driven by his friend
McCandless, as noted in the majority opinion. The vehicle
was approximately three miles west of Broadus, Montana, on
Highway No. 212 when the accident occurred.
From the evidence in the case, it appears that this
particular stretch of highway was first constructed by the
highway department in 1960. In that construction, a black-
top pavement twenty-four feet wide was provided, with
inslopes (the portion of the shoulders "in" or nearest to
the paved highway) scaled at 5:l (that is a one-foot vertical
drop for each five feet of distance away from the edge of
the pavement). According to the standards of the American
Society of State Highway Officials (ASSHO) construction of
inslopes on that scale is in accordance with good engineering
practice.
In 1969, this highway was reconstructed because of its
deteriorating condition and because of the need of a broader
paved surface for highway travel. To accomplish this, the
highway department determined that it would overlay on the
1960 blacktop an additional oil mat, but the width would be
extended from twenty-four feet to twenty-eight feet. After
the 1969 construction, the oil mat was striped with paint to
provide a centerline, a twelve-foot driving lane in each
direction, and a two-foot wide portion of the oil mat
outside the striped driving lane to where the gravelled
shoulder met the edge of the oil mat.
 After the overlayment, the inslope was scaled at 3:1,
and in places there was a sharp dropoff from the edge of the
oil mat to the shoulder. The division engineer of the
department recognized that the shoulder slope was dangerous,
reporting by letter that the slope was so great that it was
too risky to use the roller in connection with its con-
struction and that the steep slope was quite hazardous and
possibly should be delineated before the project was completed.
Because of this condition, the department issued an extra
work order on force account to flatten the inslope along the
overlayment, to provide additional shoulder stability, and a
less hazardous inslope for the travelling public. However,
the steep condition was not thereby cured.
The final acceptance report in the department files
dated February 6, 1970, indicated that the pavement inslope
did not blend with the existing inslopes on the prior road
and that there was a hazardous dropoff along the edge of the
pavement. Thus, the department had notice of the situation
from and since 1970.
The evidence also showed that on July 7, 1967, before
the overlayment, the department had received an instructional
memorandum from ASSHO in which design practices for roadside
features and appurtenances were set out. Where the designed
speed was fifty miles per hour or more, with respect to
completed construction contracts, or those undergoing con-
struction, it was recommended that roadside slopes should be
at the scale of 6:l or flatter, but if fills twenty-five to
fifty feet existed, a maximum slope of 4:l should be the
objective.
In this case, the inslopes were scaled at the rate of
3:l on the highway where there was a sixteen-foot fill.
-9-
 The federal authorities, since federal monies were
being used in connection with the cost of the construction
overlayment, recognized the hazard. Correspondence in the
department files indicates the department intended to ask
for a waiver because of the steepness of the inslopes after
the overlayment but this was never done.
The ASSHO recommendations also provided that in those
cases where it was impossible to have inslopes flatter than
4:l or 6:l depending upon the height of the fill, that there
should be warning signs or guardrails to protect the travelling
public where such steeper slopes existed. None were provided
here.
An expert called by the plaintiff testified the inslope
as constructed after the overlayment failed to meet the
standards of good engineering practice "because it doesn't
provide a side slope -- enable - vehicle that for
that will a
some reason inherently or otherwise may have gone beyond the
-
edge of the shoulder to recover. The slope is so steep ..
." [Emphasis added. 1
There is no dispute in the evidence that there was a
dropoff from the right edge of the highway pavement to the
shoulder. The highway patrolman reported nine inches. The
experts measured from ten to thirteen and one-half inches of
dropoff that extended along for the more than two hundred
feet that plaintiffs vehicle travelled with its right wheels
off the pavement surface, before it returned to the pavement
surface, crossed the roadway and overturned. Plaintiff's
expert explained how the accident happened:
"Based upon the patrolman's report and
his narrative to a large extent, the
vehicle, the man, drove off the edge
of the highway and he came to this steep
inslope and consequently it would pull
the car naturally downhill toward the
shoulder, off to the right, and the
 normal procedure is to try to get
back on the roadway. The very prudent
thing to do is not to dynamite your brakes
and try to climb back. You have to get
a greater and greater--a term referred
to as a 'track angle' of the tires--so
you can climb over that inslope, the
grade. Then, as this inslope became
less at some point, the tires caught
and suddenly the car took across the
road in the direction where the tires
were pointing, having a tendency to
turn even more that way . .."
This testimony was never refuted by any witness for the
defendant.
The State did contend that the overlayment and inslopes
have been constructed in accordance with good engineering
practice, but this was founded upon the premise of employee
Becker, who testified that there were no safety standards or
guidelines for the construction of an overlay project.
(Imagine!) However, the State was allowed to introduce a
considerable amount of testimony covering four transcript
volumes relating to procedures, costs and other problems
faced by the highway department in connection with any
highway construction or reconstruction project. To this
latter evidence, plaintiff objected.
The appeal comes before us then as a situation in which
plaintiff concedes the negligence of plaintiff's driver of
the pickup truck in veering off the edge of the pavement but
maintaining that the concurring negligence of the department
in its construction of the highway was also a proximate
cause of the plaintiff's injuries. Of course, the negligence,
if any, of the driver of the vehicle, may not be imputed to
the plaintiff passenger. In my opinion, plaintiff proved
his case of concurring proximate negligence as a matter of
law and judgment should have been entered for him after a
determination of his damages proximately caused.
 Although the State is not an insurer of one who uses
the highways, State ex rel. Byorth v. District Court (1977),
Mont. , 572 P.2d 201, 34 St.Rep. 1447, it is under
a duty to keep its highways in a reasonably safe condition
for the ordinary use thereof.
This duty extends to the shculder immediately adjacent
to the paved portion of the highway, as it is corrimon exper-
ience that vehicles may stray or veer from the usual or

travelled portion thereof, by being forced off the paved

portion, or straying off inadvertently. 39 Am.Jur.2d
Highways, Streets, - Bridges 8488.
and
It is the further duty of the State to construct its
highways so that no latent or hidden defect or trap thereon
constitutes an unreasonable danger to persons in vehicles,
including those portions of the highway where it may reason-

ably be foreseen that vehicles might traverse though off the
paved portion of the highway. 39 Am.Jur.2d Highways,
Streets, - Bridges 5489.
and
These duties apply whether the defect occurs in the
original construction, or later through repair, reconstruct-
ion, resurfacing or maintenance. Beeman v. State of New
York (N.Y. A.D. 1968), 289 N.Y.S.2d 263 (negligent main-

tenance); Clohessy v. State of New York (N.Y.Ct.Cl. 19581,
173 N.Y.S.2d 835; Paul v . Faricy (1949), 228 Minn. 264, 37
N.W.2d 427.
When defects are present the State's duty to cure or
remove the same, or give warning thereof, begins when it has
notice of the same and opportunity to act. Cameron v. State
of California (1972), 7 Cal.3d 318, 497 P.2d 777; Parfait v.
State Department of Highways (La. 1976), 334 So.2d 549.
The primary issue in this case which could give rise
to liability was whether the State had caused to be constructed
a defective or dangerous shoulder. Within that issue was a
subissue, whether the shoulder constituted an unreasonable
hazard to vehicles foreseeably crossing the same at
usual highway speeds.
To that issue and _s.ubissue,it was not relevant (1)
that studies had been made before overlaying the original
oil pad; ( 2 ) that cost was any consideration in deciding
to overlay the old road; or (3) that the highway department,
under a five-year plan, preplans the order and necessity of
projects over a broad range of possibilities.
It is not a defense where the State is charged with
constructing a hidden trap or defect in the highway, that
the State carefully constructed the defect. The only issue
in that instance subject to proof was whether in fact the
defect existed. If such defect did exist, no matter what
care the State exercised beforehand in considering choices
of what kind of highway to construct or reconstruct, the
end result is the sane--an unreasonable risk to the travelling
public, a breach of the State's duty toward the travelling
public. Therefore, it was improper to admit evidence on
behalf of the State tending to show that the terrain was
difficult; or that the cost of cure was great; or the
amount of available right of way was insufficient; or
the cost of maintenance of the old road mandated the change;
or funding by districts as required by statute limited
the ability of the State to cure the defect; or a five-
year plan was applicable to determine the wisdom of rebuilding
the highway, or any other number of preconstruction items
that had nothing to do with the central issue of whether or
not a defect or trap did exist. That issue should have been
determined by the jury from evidence answering "yes, it did
exist" or "no, it did not exist" and by the further determina-
ation as tc whether the defect was the proximate cause of
plaintiff's injuries.
-13-
 The record in this case is burdened with page after
page of testimony relating to the extraneous matters noted
foregoing. The jury got sidetracked so that the issue
became not whether a hazardous condition existed but whether
the State of Montana had a highway engineering department
that used good engineering practice. As I stated, if the
defect existed, it is not a defense that the defect was
brought about by good engineering practice.
I am also of the opinion that there is an irreconcilable
conflict between the holding in the majority opinion and our
holding in the Byorth case. In Byorth, 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 "factor" in determining negligence.
Thus we now accord the State what was condemned in Byorth,
"a defense a private party never had". 5 7 2 P.2d at 203.

In Byorth, this Court went on to say:
"Over and above the substantive consideration,
the procedural complexities of the offered
defense militate strongly against it. It
would call forth in every highway injury
or death case a jury review and decision
on the State's entire highway program,
including an infinitude of legislative
as well as administrative decisicns. The
defense would need only to be pleaded to
bar all but the very largest of claims,
and even with those claims the evidentiary
burden would become unmanageable." 5 7 2 P.2d
at 203, 204.
That is exactly what happened in the Modrell case. On
trial was not the sinple issue of negligence in building or
not building a defect in the highway, but rather the whole
of the department's procedures in constructing and recon-
structing highways. It may be coincidental, but the district
judge who authored the above language in Byorth is the same
district judge who sat on the Modrell case in the District
Court. Bvorth was handed down after this Modrell case had
been tried in the District Court. When he authored Byorth,
the good judge was speaking from a searing experience.
I would reverse and remand with instructions to find

for the plaintiff on the issue of liability and to determine
damages.

Justice