Buck v. State

Decision Date02 September 1986
Docket NumberNo. 84-504,84-504
Citation723 P.2d 210,222 Mont. 423
PartiesTamela BUCK, Alice Keys, Kelly Keys, John A. Buck and Dorothy J. Buck, Individually and as personal representatives of the estate of Elizabeth Ruth Buck, deceased, Plaintiffs and Appellants, v. STATE of Montana, a body politic and Madison County, a political subdivision of the State of Montana, Defendants and Respondents.
CourtMontana Supreme Court

Corette, Smith, Pohlman & Allen, Dolphy Pohlman, Butte, argued, Hash, Jellison, O'Brien & Bartlett, James C. Bartlett, Kalispell, argued for plaintiffs and appellants.

John H. Maynard and Daniel Hoven, argued, for State of Mont.

Harrison, Loendorf & Poston, James T. Harrison, Jr., Helena, argued, for Madison County.

SHEEHY, Justice.

This is an appeal by each of the plaintiffs above named from a judgment entered against them and in favor of the State of Montana and the County of Madison after jury trial in the District Court, Fifth Judicial District, Madison County.

On August 30, 1980, at approximately 2:15 o'clock a.m., Tamela Buck, Alice Keys, Kelly Keys and Elizabeth Ruth Buck were traveling in a 1973 Volkswagon from Whitehall to their home on the South Boulder River in Madison County, Montana. A single car accident occurred at that time approximately one mile southeast of Card Kelly Keys, Alice Keys, and Tamela Buck filed separate actions against the State of Montana. Later the three plaintiffs filed a consolidated amended complaint naming the State of Montana and the County of Madison as defendants.

                [222 Mont. 426] well on Highway 359 in Madison County.   The driver, Kelly Keys, was injured as were two passengers, Alice Keys and Tamela Buck.   A third passenger, Elizabeth Ruth Buck, died from injuries received from the accident
                

In 1983 John A. Buck and Dorothy J. Buck, individually as parents and as personal representatives of the estate of Elizabeth Ruth Buck, deceased, filed a complaint against the State of Montana, and County of Madison. By later stipulation, all of the plaintiffs' cases were consolidated for trial in Virginia City, Montana.

Highway 359 was a secondary highway owned by the State of Montana on the date of the accident. The section of highway where the accident occurred was subject to a maintenance agreement between the State of Montana and Madison County.

The principal issue of fact in this case was what caused the accident. The plaintiffs each contended that the section of roadway where the accident occurred was curved and that there was no curve sign or other warning of the upcoming curve presented to the driver of the Volkswagon. They contend that instead of following the curve, because of the lack of warning, the driver drove in a straight direction off the left side of the highway, corrected to get back on the highway surface and then the Volkswagon collided with a wooden railing bridge. A shaft or timber from the wooden bridge came through the Volkswagon, pinning the passengers in the rear seat, and apparently causing the death of Elizabeth Ruth Buck. The plaintiffs attack the construction of the bridge as unsafe.

The plaintiffs contended that the State of Montana had a legal duty to design and construct Highway 359 in a reasonably safe condition for motorists and that it failed such legal duty; that the County of Madison had the legal obligation to maintain Highway 359 in a reasonably safe condition at the time of the accident and it failed its contractual duty; and that these factors were a proximate cause of the injuries suffered by the four persons in the Volkswagon.

The State and County contended that there was no breach of legal duty in the design or construction; that they maintained the highway in a reasonably safe condition at the time; that the driver of the vehicle Kelly Keys had a statutory duty to drive upon the right side of the roadway and not to drive while under the influence of alcohol; that the driver failed to keep a lookout and that her breaches of statutory and common law duties were the sole proximate cause of the accident from which the injuries to all plaintiffs arose. The State and County further contended that the passengers other than the driver had a duty to protect themselves from unreasonable risk of harm and that by occupying the vehicle with a driver known to them to have been drinking they breached that duty, were contributorily negligent, and proximately caused their own injuries.

The evidence adduced by the plaintiffs indicated on the evening before the accident they had gone into Whitehall to a bar at the Borden Hotel to join friends already present. It was Saturday evening of a Labor Day weekend. The parties had some beers and danced. About 1 a.m. Kelly Keys and Alice Buck went to an adjoining restaurant to eat a hamburger and drink coffee. As the bar closed they purchased a six pack of beer to take home. Kelly had stopped drinking, and had consumed in all 2 1/2 bottles of beer. They left the bar at about 2 a.m. and proceeded to the place were the accident occurred.

The accident site had been designed and constructed in 1957 by the State of Montana. The roadway in that section proceeds directly east for about a half a mile before entering a sharp right hand curve at the end of the straightaway. Half way through the right hand curve was a wooden bridge with wooden railings on each side. A "curve sign" had been designed At the curve, the Volkswagon went straight ahead, crossed the center line and smashed into the left bridge abutment. After the impact, Kelly was injured but able to get out of the vehicle and find help from a neighboring family. Alice and Tamela were both injured and had to be removed by Allen Pochelon. All were taken to the St. James Community Hospital in Butte from the Pochelon residence. Elizabeth Ruth Buck died while in the vehicle and her body was removed and taken to the mortuary at Ennis, Montana.

for the curve and had at one time been placed at that location, but on the night of the accident the warning curve sign was missing.

The State contended this accident was a result of the drinking by Kelly Keys, the driver. The State and County contended that the evidence showed that Kelly Keys lost control of the automobile, drifted across the middle of the road to the left hand side and went off the paved surface of the road 105 feet 11 inches before the final resting place of the vehicle. The highway investigating officer testified that no evasive action was taken until immediately prior to the impact. At one time the automobile was off the paved surface and on the gravel shoulder so that its right rear wheel was away from the paved road a distance of four feet six inches.

The nurse who accompanied the ambulance testified that Kelly Keys was under the influence of alcohol; she testified that Kelly Keys interfered with the performance of her duties and needed restraining. A blood alcohol test was taken in the hospital at 6 a.m. of Kelly Keys. It showed a .07 blood alcohol content at the time. Dr. Kenneth H. Mueller testified that for such a blood alcohol content to exist at 6 a.m., following the accident, "her blood alcohol would have to have been .11 to .15" at 2 a.m. He testified that Kelly Keys must have consumed six, perhaps as high as ten drinks. He said it was impossible to have a .07 blood alcohol result from 2 1/2 bottles of beer 3 1/2 hours before the blood test.

Contrary evidence on the intoxication of Kelly Keys was had from John Buck, the father of Elizabeth Ruth Buck, who talked to Kelly Keys at the hotel in Whitehall just before she left to drive the Volkswagon. From his close observation, she did not appear intoxicated to him. Mr. Buck later drove his automobile down the same roadway, and testified that there was no warning curve sign along the road's edge and that he himself had nearly run off the road before he realized he was approaching a curve.

Other contra evidence on intoxication came from Allen and Debbie Pochelon. They occupied a house a distance from the site of the accident. Following the impact, Kelly Keys got out of her automobile, and went back on the highway towards the Pochelon residence. There she banged on the door, and both Allen and Debbie observed Kelly Keys, her head covered with blood, hysterical, but in their opinion there was no indication of any intoxication or drinking. Kelly Keys remained at the house until the ambulance came. The other two passengers also came to the Pochelon residence. The Pochelons saw no evidence of drinking in the other two passengers.

Issues of fact were submitted to the jury on a special verdict devised by the District Court. In the first two issues, the jury determined that the State of Montana was negligent, but that its negligence was not a proximate cause of the accident. In issues 3 and 4, it also found that Madison County was negligent, but that its negligence was not a proximate cause of the accident. Under the form of the verdict as submitted, they having so answered the questions, none of the other issues of fact was decided by the jury, whose foreman signed the verdict form which was returned to the Court. On the basis of the special verdict, the District Court entered judgment in favor of the State and of the County.

Assignments of error raised by the appellants include instructional error in refusing to instruct on concurrent cause; and evidentiary error in refusing to allow evidence

                of subsequent improvements to Highway 359;  excluding the opinion of a witness as to the effect on the driver of the missing curve sign;  and admitting evidence that the driver was not wearing a seat belt.   It is also contended by appellants that the court erred in instructing the jury that it was unlawful for a person to drive a motor vehicle while under the influence of alcohol
                
INSTRUCTIONS

The principal problem in this case lies in instructions given and not...

To continue reading

Request your trial
10 cases
  • Faulconbridge v. State
    • United States
    • Montana Supreme Court
    • August 22, 2006
    ... ... 79, ¶ 9, 122 P.3d 1193, ¶ 9 ...         ¶ 68 The State has not met its burden to prove there are no genuine issues of material fact. The State has a duty concerning the original construction and design of the road under well-established Montana law. Buck v. State (1986), 222 Mont. 423, 429, 723 P.2d 210, 214 (overruled on other grounds). The State also is under a duty to keep its highways in a reasonably safe condition for ordinary use. Buck, 222 Mont. at 429, 723 P.2d at 214 ...         ¶ 69 A question of fact remains as to what ... ...
  • Henricksen v. State
    • United States
    • Montana Supreme Court
    • January 28, 2004
    ... ... The State had notice of the defect caused by the unsafe distance between the stairway balusters when the first fall occurred. "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." Buck v. State (1986), 222 Mont. 423, 430, 723 P.2d 210, 214 (overruled on other grounds). Here, despite notice, the State did not act to cure, remove, or warn of the stairway defect ...         ¶ 26 The State contends that because it had a relatively accident-free history at the library ... ...
  • Yager v. Deane
    • United States
    • Montana Supreme Court
    • July 16, 1993
    ... ... YAGER and Barbara A. Yager, Plaintiffs and Appellants, ... Rolland DEANE, a/k/a Roland E. Deane, Jr., Defendant and Appellant, ... The State of Montana, Defendant and Respondent ... No. 92-283 ... Supreme Court of Montana ... Submitted on Briefs Oct. 29, 1992 ... Decided May 27, ... that the State is required to maintain the fence along the right-of-way under its general duty to keep the highways reasonably safe, citing Buck v. State (1986), 222 Mont. 423, 429, 723 P.2d 210, 214. The Yagers also base the State's general duty on its ownership of the right-of-way. They ... ...
  • Dobrocke v. City of Columbia Falls
    • United States
    • Montana Supreme Court
    • July 6, 2000
    ... ... Brown v. Demaree (1995), 272 Mont. 479, 482, 901 P.2d 567, 569 (citing Hatch v. State Dept. of Highways (1994), 269 Mont. 188, 192, 887 P.2d 729, 732 ). The first element of a negligence claim, duty, is a question of law. Brown, 272 ... City of Butte (1937), 104 Mont. 225, 65 P.2d 1175, and Buck v. State (1986), 222 Mont. 423, 723 P.2d 210, do not, in fact, stand for that proposition ...         ¶ 42 The plaintiff in Sullivan ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT