No. 91-585
IN THE SUPREME COURT OF THE STATE OF MONTANA
MICHAEL BROCKIE, as Personal
Representative of the Estate
of ARIC C. BROCKIE, Deceased,
Plaintiff and Appellant,
OM0 CONSTRUCTION, INC.,
Defendant and Respondent.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Thomas C. Honzel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Kurt M. Jackson, Hoyt and Blewett, Great Falls,
Montana
For Respondent:
Michael J. Milodragovich and Margaret L. Sanner,
~ilodragovich,Dale and Dye, Missoula, Montana
Submitted on Briefs: June 11, 1992
Justice R. C. McDonough delivered the Opinion of the Court.
Michael Brockie, personal representative of the estate of Aric
C. Brockie, appeals from an order of the First ~udicial~istrict,
Lewis and Clark County, denying his motion for a new trial. We
affirm in part and reverse in part.
The following issues are presented on appeal:
1. Whether the District Court erred in denying Brockie's
motion for a new trial;
2. Whether the District Court erred in refusing to instruct
the jury that Omo Construction, 1nc.I~violation of the Manual on
Uniform Traffic Control Devices constituted negligence as a matter
of law;
3. Whether the District Court erred in refusing to instruct
the jury that mere compliance with traffic regulations does not
necessarily constitute due care; and
4. Whether the District Court erred in excluding certain
impeachment evidence and by admitting certain prejudicial evidence.
On November 26, 1989, Aric Brockie was killed in a one car
accident on 1-94 near the Huntley Interchange east of Billings.
Aric Brockie was the passenger in a vehicle driven by a friend.
The two were returning to Billings after a Thanksgiving holiday in
Miles City. The vehicle skidded as it approached an icy bridge.
The car slid off the highway into the median where it struck a
flasher board owned by Omo Construction, Inc. (Omo).
Omo was performing traffic control and guardrail work on 1-94
as part of a construction contract with the State Highway
2
Department. On Wednesday, November 22, 1989, Omo had installed a
new guardrail and median hazard closures on a bridge structure. In
order to erect the guardrail on the median sides of the bridge, the
crew was required to close the passing lane of the interstate in
each direction of travel. Omo erected a number of advance warning
signs for each lane plus two portable "arrow boards" or Itflasher
boardsn which directed traffic with flashing arrows.
At the end of the day, on Wednesday, November 22, 1989, the
foreman on the project directed worker Michael Stookey to remove
the equipment from the highway and store it for the Thanksgiving
holiday. Stookey removed the advance warning signs to a location
east of the bridge next to the highway right-of-way fence. He
pulled other signs to the parking lot of the Longhorn Cafe. Upon
instructions from the foreman he placed the flasher boards in the
middle of the median at either end of the bridge.
Highway Patrol Officer Virginia Kinsey drove past the area
several times during her shift on November 26, 1989. She testified
that she had the authority to have construction equipment removed
if it was hazardous to the public. She saw the flasher board and
did not believe it was in a hazardous area. Officer Kinsey
responded to the Brockie accident and along with two other
officers, made measurements at the scene. She testified that the
flasher board was 27 feet 2 inches from the yellow median strip of
the westbound lane at the time of impact. ~raffic control
provisions of the contract required compliance with highway safety
standards. A "30 foot clear" zone requirement prohibits storage of
a traffic control device within 30 feet of the traveled highway.
Omo's expert, Dr. Thomas Blotter, an accident reconstruction
expert, opined that the flasher board was parked between 34 and 48
feet from the westbound lane at the time of impact. Dr. Blotter
testified at trial, basing his analysis on motion theory and
kinematics. Since Brockie did not put an expert on the stand, Dr.
Blotter's testimony went uncontroverted.
Francis H. Rice, the jury foreman, after the close of the
evidence, went to the library of Carroll College to do some
research about Dr. Blotter's testimony. Rice had taken some
physics courses in college, and by affidavit, stated he wished to
refresh his memory about physics principles concerning kinematic
theory and motion theory. He stated his research clarified the
testimony of Dr. Blotter. Rice stated that he mentioned to only
one other juror that over the weekend he had done some research
into kinematic theory and motion theory. However, affidavits of
two separate jurors stated Rice mentioned his research to them in
the jury room. By affidavit Rice stated he did not mention his
research during deliberations.
Brockie's counsel, upon hearing that Rice had done some
independent research, filed a motion for a new trial with the
District Court. The District Court denied Brockie's motion . This
appeal followed. Our standard of review is whether or not the
District Court abused its discretion in denying Brockie's motion
for a new trial and ruling on evidentiary matters. Steer, Inc. v.
Dept. of Revenue (1990), 245 Mont. 470, 803 P.2d 601.
I
Whether the District Court erred in denying Brockie's motion
for a new trial.
The District Court found that the actions of Mr. Rice amounted
to jury misconduct. However, relying on Arthur v. Washington Iron
Works (1978), 22 Wash.App. 61, 587 P.2d 626, the District Court
found that Rice's conduct was not prejudicial to Brockie. In
Arthur, the jury foreman went to the public library and looked for
handbooks on rigging and informed the other jurors they were
available. He also examined the yellow pages to see if the experts
who testified were listed. Arthur, 587 P.2d at 628. The court of
appeals upheld the trial court's determination that the library
incident went to the credibility of the witness and that the
telephone directory incident gave extra status to the expert
listed. Arthur, 587 P.2d at 631.
Generally, courts in both civil and criminal cases have held
that to warrant a new trial, the misconduct must be such that
actual or potential injury results to the losing party. Section
25-11-102, MCA, governs grounds for a new trial. It provides in
part:
The former verdict or other decision may be
vacated and a new trial granted on the
application of the party aggrieved for any of
the following causes materially affecting the
substantial rights of such party;
(1) irregularity in the proceedings of the
court, jury, or adverse party or any order of
5
the court or abuse of discretion by which
either party was prevented from having a fair
trial.
(2) misconduct of jury. Whenever any one or
more of the jurors have been induced to assent
to any general or special verdict or to a
finding on any question submitted to them by
the court by a resort to the determination of
chance, such misconduct may be proved by the
affidavit of any one of the jurors.
See also Rule 606, M.R. Evid.
We agree with the District Court that the actions of juror
Rice constituted jury misconduct, as shown by his affidavit, and
the affidavit of two other jurors. The question before us remains
whether actual or potential injury to Brockie resulted from Rice's
conduct, and denied Brockie a fair trial. We have said in Putro v.
Baker & Mannix Electric, Inc. (1966), 147 Mont. 139, 410 P.2d 717,
that the "guiding principle in our legal system is fairnessn and
that both sides of the lawsuit are entitled to a fair trial. Putro
at 147, 410 P.2d at 722. We went on to state that there is no
practical method to determine whether the outcome would be
different had the misconduct not occurred. We said: "The trial
court should have declared a mistrial in justice to itself as well
as to parties, so that a fair trial may result and the verdict when
rendered may be entitled to the respect of both parties and the
confidence of the court." Putro at 148, 410 P.2d at 722.
In Putro a newspaper article disclosed that the defendant
plead guilty to manslaughter, in a related criminal case, as a
result of the accident in question. One of the jurors clipped the
article and brought it into the jury room. The jurors stated that
the article did not influence their verdict. Further, two of the
jurors stated that they dropped the subject because they did not
think they should read the article. We held that the possibility
of influence existed, and probable prejudice resulted. PutrQ at
149, 410 P.2d at 723.
In Ahmann v. American Fed. Sav. & Loan Ass'n (1988), 235 Mont.
184, 7 6 6 P.2d 853, we held that any influence the alleged remark
of the bailiff may have had on the jury did not affect the rights
of the Ahmanns, and affirmed the District Court's denial of
Ahmann's motion for a new trial. In Ahmann the jurors raised a
question forthe judge. The bailiff said the judge wouldn't answer
it until after the trial. However, he did not preclude the jurors
from pursuing the matter. Ahmann at 191, 7 6 6 P.2d at 8 5 7 .
In the present case, Omo presented the expert testimony of Dr.
Blotter at the trial. Dr. Blotter testified to the theory of
kinematics and motion theory in relation to the location of the
flasher board at the time of impact. Dr. Blotter's testimony was
not contested or controverted by an expert, but was contested by
the testimony of highway patrolman Kinsey. The location of the
flasher board was at the very heart of the evidence. Francis Rice
by affidavit, related that he went to the Carroll College library
to research the theory of kinematics and motion theory and it
clarified Dr. Blotter's testimony. Affidavits of two other jurors
confirmed he had mentioned this to them in the jury room. Probable
prejudice resulted from Rice's misconduct. Rice's independent
alleged clarification of Dr. Blotter's testimony affected the
rights of Brockie for any statements by Rice in the jury room
relative to the placement and positions of the sign, could in
effect make Rice a witness as to those jurors to whom he mentioned
his research.
We conclude the District Court abused its discretion in
denying Brockie's motion for a new trial. Because we remand for a
new trial, the balance of the issues are instructive only.
I1
Whether the District Court erred in refusing to instruct the
jury that Omo Construction, Inc.'s violation of the Manual on
Uniform Traffic Control Devices constituted negligence as a matter
of law.
The District Court refused Brockie's jury instruction that a
violation of the Manual on Uniform Traffic Control Devices (MUTCD)
is negligence per se. In 1955 the legislature authorized the State
Highway Department to adopt a manual on traffic control devices.
The State Highway Commission adopted the MUTCD in 1971. In 1981
the legislature amended 5 61-8-202, MCA, to clarify which traffic
control manual the highway department should adopt. The statute
now states: "The department of transportation shall adopt a manual
for a uniform system of traffic-control devices .. .I1 Section 61-
8-202, MCA. If the legislature mandates a department to adopt
rules but does not act further to adopt the rules, the rules do not
become part of a statute by reference. Cash v. Otis Elevator Co.
(1984), 210 Mont. 319, 326, 684 P.2d 1041, 1045. Here, the MUTCD
is not incorporated by reference. The MUTCD is not a statute but
an administrative regulation. Violation of the MUTCD is not
negligence per se but evidence of negligence. See Williams v.
Maley (1967), 150 Mont. 261, 434 P.2d 398, Herbstv. Miller (1992),
- Mont. -, 830 P.2d 1268.
We conclude that the District Court did not err in denying
Brockie's proposed instruction that a violation of the MUTCD was
negligence per se.
Whether the District Court erred in refusing to instruct the
jury that mere compliance with the traffic control regulations does
not necessarily constitute due care.
The District Court refused Brockie's instruction number 44.
Instruction 44 Provided:
If you find that defendant OM0 Construction,
Inc. placed the arrow board more than thirty
(30) feet from any traffic lane, you are
instructed that defendant Omo Construction,
Inc. was still required to comply with the
provisions of its contract including the
requirements of the MUTCD.
Brockie argues that the District Court's refusal of this
instruction encouraged the jury to conclude that mere compliance
with the 30 foot clear zone constituted due care. The District
Court also refused Brockie's No. 17 which instructed the jury that
Omo had a duty to remove obstacles which may constitute an
unreasonable danger to motor vehicles and a violation of that duty
is evidence of negligence.
However, the District Court provided the jury with proposed
instructions 42 and 45 which provide respectively:
INSTRUCTION NO. 42
Ordinary care is not an absolute term, but a
relative one. That is to say, in deciding
whether ordinary care was exercised in a given
case, the conduct in question must be viewed
in light of all the surrounding circumstances,
as shown by the evidence in the case.
INSTRUCTION NO. 45
On December 1, 1971, the Manual on Uniform
Traffic Control Devices (MUTCD), was adopted
by the Montana Highway Commission as a
standard or norm to be used for traffic
control devices.
Pursuant to the contract signed by the
defendant Omo Construction, Inc., it was
required to comply with the requirements of
the MUTCD. If you find that defendant Omo
Construction, Inc. violated any of the
provisions of the MUTCD, you may consider such
violation as evidence of Omo's negligence in
this case.
We conclude that the District Court's instructions properly
instructed the jury. Therefore the District Court did not err in
refusing Brockie's proposed instructions.
Whether the District Court erred in excluding certain
impeachment evidence and by admitting certain prejudicial evidence.
The District Court granted Orno's motion in limine preventing
Mr. Charlton, a retired Project Manager for the Highway Department,
from testifying on certain matters. On the Monday following the
accident, Mr. Charlton visited the accident scene and made some
measurements of highway equipment stored by Omo. When Mr. Charlton
arrived at the site, the flasher board in question had already been
removed. He made measurements of the other flasher board on the
other side of the bridge and equipment some distance from the
accident site. The District Court ruled that only evidence
concerning the accident would be relevant.
On direct examination, Mr. Charlton testified that for
safety's sake, obstructions should be completely removed from the
median. On cross examination, Mr. Charlton testified that the
other flasher board parked in the median on the other side of the
bridge was outside the clear zone and in conformity with the
requirements of the State of Montana. The District Court did not
allow redirect examination about equipment unrelated to the
accident, placed some two miles from the accident site.
Brockie sought to 'impeach' Mr. Charlton through testimony
that this other equipment, although in compliance with the clear
zone, should be removed for safety reasons. Impeachment is
typically used to test the veracity of a witness. On direct
examination, Mr. Charlton testified that obstructions should be
removed for the sake of safety. However, he admitted on cross that
the other flasher board conformed with State requirements. Any
testimony stating that equipment two miles from the accident site
should have been removed for safety's sake would not be proper
impeachment. The placement of the equipment two miles from the
accident site is irrelevant, thus testimony regarding this
equipment would not be proper impeachment.
Brockie argues that Mr. Charlton's testimony that the flasher
board on the other side of the bridge was in the clear zone and in
conformity with the requirements of the State of Montana was
prejudicial based on Rule 403, M.R.Evid. Rule 403 excludes
evidence i f i t s p r o b a t i v e v a l u e i s s u b s t a n t i a l l y outweighed b y t h e
danger of u n f a i r p r e j u d i c e . Because M r . C h a r l t o n t e s t i f i e d that
any o b s t r u c t i o n s should be removed f o r t h e s a k e of s a f e t y , w e do
not find this t e s t i m o n y prejudicial.
W e conclude t h a t t h e D i s t r i c t Court d i d n o t e r r i n r e f u s i n g
Mr. C h a r l t o n ' s testimony r e g a r d i n g t h e other equipment.
For t h e r e a s o n s s e t f o r t h above, we r e v e r s e and remand t o the
D i s t r i c t Court for proceeding n o t i n c o n s i s t e n t with this o p i n i o n .
Justices
Justice Terry N. Trieweiler specially concurring and dissenting.
I concur with the majority's conclusion under Issue I that
Michael Brockie is entitled to a new trial, based upon misconduct
of the juror, Francis Rice.
I also concur with the majority's conclusion under Issue IV
that the District Court did not abuse its discretion by limiting
the redirect examination of Robert Charlton. However, I do not
agree with all that is said in the majority's rationale for that
conclusion. Specifically, I do not agree that the questions posed
to Charlton on redirect examination were improper for purposes of
impeachment. However, I do agree that the District Court has broad
discretion when it rules on the propriety of cross-examination or
redirect examination. In this case, I agree that that discretion
was not abused.
I dissent from the majority's conclusions under Issues I1 and
I11 which relate to the District Court's jury instructions.
I conclude that based on our prior case law, and based upon
the better public policy, the jury should have been instructed that
a violation of the Manual on Uniform Traffic Control Devices is
negligence as a matter of law.
While the majority relies on our prior decisions in C a s h v . O h
ElevatorCompany (1984), 210 Mont. 319, 684 P.2d 1041, and Williamsv.
Maley (1967), 150 Mont. 261, 434 P.2d 398, I conclude that our
decision in Martel v. Montana Power Company (1988), 231 Mont. 96, 752
P.2d 140, is controlling.
The WiIhrns decision is not relevant to our conclusion on this
issue because it was decided in 1967, and as pointed out by the
majority, the statute upon which it relied was materially amended
in 1981. At the time that Wlliams was decided, 5 32-2134, R.C.M.
(now 5 61-8-202, MCA), made no reference to the Manual on Uniform
Traffic Control Devices. Therefore, the Highway Commission had no
direct mandate from the legislature to consider or adopt that
manual. The majority opinion points out that that section was
amended in 1981. However, when quoting the statute, the majority
fails to include the amended portion. Significantly to our
decision, the full statute now reads as follows:
The department of transportation shall adopt a
manual for a uniform system of traffic-control devices
consistent with this chapter for use upon highways within
the state. This uniform svstem shall correlate with and
so far as ~0sSible conform to the manual on uniform
traffic control devices, as amended. [Emphasis added.]
Section 61-8-202, MCA.
In other words, at the time that William was decided, the
statute which authorized the Highway Commission to adopt a manual
for uniform signing of highways made no specific reference to the
MUTCD. At all times relevant to this action, the statute in
question mandated that the Department of Transportation adopt a
manual and that it conform as closely as possible to the MUTCD.
The correct analysis under our case law regarding when the
violation of national standards, such as the MUTCD, constitutes
negligence per se is found in Herbst v Miller (Mont. 1992), 8 3 0 P.2d
.
1268, 49 St. Rep. 40. In that case, we gave the following
explanation of the legal effect of national standards which have
been adopted in Montana:
We have held that violation of an administrative rule
adopted under 5 50-60-203, MCA, as in the instant case,
is not negligence per se but instead is evidence of
negligence. Cash v. Oh Elevator Company (1984) , 210 Mont .
319, 684 P.2d 1041. In Oh, we recognize that
5 50-60-203, MCA, mandates the Department of Commerce to
adopt rules but that the legislature did not act further
to incorporate by reference the rules adopted by the
agency. In contrast, we held that violation of a
national standard adopted by specific statutory reference
is negligence as a matter of law. Martel v. Montana Power
Company (1988), 231 Mont. 96, 752 P.2d 140. ...
... The Town of Belgrade adopted a resolution
whereby the UBC [Uniform Building Code] is incorporated
by reference. ...
... Miller's failure to install a handrail leading
to the basement apartment is a failure to maintain her
building in adherence with the ordinance and is therefore
a violation of the ordinance. It is long settled that
violation of a city ordinance constitutes negligence per
se. Marshv.Ayers (1927), 80 Mont. 401, 260 P. 702.
Herbst, 830 P.2d at 1271.
The Town of Belgrade adopted the Uniform Building Code by
reference, and therefore, we found that violation of the building
code was negligence per se.
The Montana Legislature mandated that the Department of
Transportation "adopt a manual for a uniform system of
traffic-control devices," and that so far as possible it conform to
the "manual on uniform traffic control devices, as amended."
Section 61-8-202, MCA. From that point on, the MUTCD was clearly
"a national standard adopted by specific statutory reference." I
fail to see any practical difference between the circumstances in
this case, and the circumstances in Herbst or Martel. Furthermore, I
fail to see any justification from a public policy point of view
for giving greater legal significance to the Uniform Building Code
or the National Electric Safety Code, than the Manual on Uniform
Traffic Control Devices. As a practical matter, they are all part
of the law of the State of Montana. They were all enacted to
protect the public and make Montana a safer place to live, and the
violation of one creates just as much potential for danger as the
violation of another. The majority opinion constructs intellectual
distinctions which make no practical difference, and which are
neither supported by our prior case law nor common sense. It does
nothing to further the historical purposes of the law of
negligence.
Finally, I dissent from the majority opinion because I
disagree with this Court's conclusion, which had its genesis in
Stepanekv. Kober Construction (lgsl), 191 Mont. 430, 625 p.2d 51, that
there is any rational basis for treating the violation of a statute
any differently than the violation of a lawfully enacted safety
regulation. Both the statute and the safety regulation have the
same purpose. Both are enacted for the public's protection, and
presuming that proper procedures were followed, both are equally
enforceable in the event of their violation. When it comes to
determining whether one or the other can be used as a threshold
standard by which to evaluate the exercise of reasonable care, what
reason is there to treat one differently than the other?
Safety regulations are adopted by the various state agencies,
or adopted pursuant to notice to interested parties. They are
enacted to further a legislative purpose for which that agency was
established, and they presumably establish standards of reasonable
conduct in the industry or area of activity with which they are
concerned. Therefore, when it comes to a conclusion about whether
a violation of the law amounts to negligence per se, I would draw
no distinction between violations of statutory law and violations
of regulatory law.
For these reasons, I conclude that the jury was instructed
improperly and dissent from that part of the majority opinion which
concludes otherwise.
~ u s t i c e William E. Hunt, Sr., concurs in the foregoing
concurrence and dissent of Justice Trieweiler.
/
Justice
December 16, 1992
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Kurt M. Jackson
Hoyt & Blewett
P.O. Box 2807
Great Falls, MT 59403
Michael J . Milodragovich and Margaret L. Sanner
Milodragovich, Dale & Dye
P.O. Box 4947
Missoula, MT 59806-4947
ED SMITH
CLERK OF THE SUPREME COURT
STATE-OF MONTANA