Elce v. State

• Decision Date: 28 March 1986
• Docket Number: No. 15339,15339
• Citation: 110 Idaho 361,716 P.2d 505
• Parties: Phylis ELCE and Gary Elce, Jr.; Richard L. Fenison and Donna Fenison, husband and wife; R.H. Pierce Manufacturing Co., Inc., dba Pierce Corp., an Oregon Corporation; and Wausau Insurance Company, Plaintiffs-appellants, v. STATE of Idaho and Western Construction, Inc., an Idaho corporation, Defendants-respondents.
• Court: Idaho Supreme Court

Page 505

716 P.2d 505

110 Idaho 361

Phylis ELCE and Gary Elce, Jr.; Richard L. Fenison and Donna Fenison, husband and wife; R.H. Pierce Manufacturing Co., Inc., dba Pierce Corp., an Oregon Corporation; and Wausau Insurance Company, Plaintiffs-appellants, v. STATE of Idaho and Western Construction, Inc., an Idaho corporation, Defendants-respondents.

No. 15339.

Supreme Court of Idaho.

March 28, 1986.

Craig R. Jorgensen, of Lyon & Jorgensen, Pocatello, for plaintiffs-appellants.

Jeffrey A. Strother, of Moffatt, Thomas, Barrett & Blanton, Boise, for defendant-respondent State.

Richard St. Clair, of St. Clair, Hiller, Wood & McGrath, Idaho Falls, for defendant-respondent Western Const. Co.

BAKES, Justice.

1986 Opinion No. 38, filed March 3, 1986, is hereby withdrawn, and this opinion is substituted therefor.

Appellants, plaintiffs below, appeal from a district court judgment granting directed verdicts in favor of the State of Idaho and Western Construction, Inc. We affirm.

On August 9, 1979, a semi-truck owned by R.H. Pierce Manufacturing Co. and driven by Gary Elce, carrying a load of steel pipe, was traveling east on Interstate Highway 86 in Power County. Near the end of a temporary construction detour, on an "S" shaped curve which connected the detour with the existing Highway 30, Elce's truck, without leaving the paved roadway, tipped over onto its right side and slid down the center of the highway. The sliding truck then collided with a westbound semi-truck owned by Circle C Transportation and driven by Melvin Stout. As the result of the accident, Gary Elce died and his companion driver Richard Fenison, who was sleeping at the time, was injured. Both trucks were damaged.

On August 5, 1981, a complaint was filed against the State of Idaho and its highway contractor, Western Construction, Inc., by Elce's wife and son, Richard Fenison, and Pierce Manufacturing for the wrongful death of Elce, for damages due to the personal injury of Fenison, and for damages for property damage to Pierce Manufacturing's truck. The complaint alleged negligence on the part of the State of Idaho and Western Construction, Inc., the contractor responsible for the construction and maintenance of the detour.

The defendants made several pretrial motions. The district court issued an order, (1) granting defendants' motion to join Wausau Insurance as a real party in interest pursuant to I.R.C.P. 17; ¹ (2) denying defendants' motion to join S.A.I.F. Corporation, the workmen's compensation surety for Pierce Manufacturing; (3) granting defendants' motion for leave to file a counterclaim against the Elces, Pierce Manufacturing, and S.A.I.F. Corporation for contribution and indemnity with regard to the Fenisons' personal injury claim; (4) granting defendants' motion for partial summary judgment on Pierce's claim seeking contribution for the amounts paid to Circle C and the Stouts; (5) granting defendants' motion in limine, prohibiting mention of any post-accident changes in the detour; (6) granting defendant's motion in limine, prohibiting mention of a prior accident which had occurred on the detour. ²

The case went to trial on November 1, 1983. Following presentation of all the evidence, but prior to final argument by counsel, the trial court granted the defendants' motion for a directed verdict and dismissed plaintiffs' complaint. In so doing, the court stated, "The plaintiffs failed to show by substantial evidence that the defendants were negligent or that their negligence, if any, was a proximate cause of Mr. Elce losing control of his tractor trailer rig." Plaintiffs now appeal. We affirm.

I

Appellants first contend that the district court applied an incorrect test in determining that the verdict should be directed in favor of the State of Idaho and Western Construction. Citing Smith v. Great Basin Grain Co., 98 Idaho 266, 561 P.2d 1299 (1977), the district court stated:

"The court viewed this matter the same as a judgment notwithstanding the verdict and based on the evidence before the court, the court was convinced that if the jury should return a verdict for the plaintiffs that it would not be based upon substantial evidence. Had a verdict been returned for the plaintiffs, the court would have granted a judgment notwithstanding the verdict."

We find no error in the standard used by the district court in ruling on this motion for a directed verdict. In Mann v. Safeway Stores, Inc., 95 Idaho 732, 518 P.2d 1194 (1974), we very clearly stated that, "Because a motion for judgment n.o.v. is a delayed motion for directed verdict, this new standard of substantial evidence must also be applied to motions for directed verdicts made pursuant to I.R.C.P. 50(a)." Id. at 736, 518 P.2d at 1198. See also Brown v. Jerry's Welding & Constr. Co., 104 Idaho 893, 895, 665 P.2d 657, 659 (1983). The district court was correct in concluding that if there was no substantial evidence of either defendant's negligence or of proximate cause, then the motion for directed verdict should be granted. Mann v. Safeway Stores, supra.

In considering a motion for a directed verdict under the substantial evidence standard, the case should be submitted to the jury if the evidence is of sufficient quantity and probative value that reasonable minds could have concluded that a verdict in favor of the non-moving party was proper. Stephens v. Stearns, 106 Idaho 249, 253, 678 P.2d 41, 45 (1984); Owen v. Burcham, 100 Idaho 441, 447, 599 P.2d 1012, 1018 (1979). However, a verdict cannot be based on conjecture. Thomas Helicopters, Inc. v. Santan Ranches, 102 Idaho 567, 570, 633 P.2d 1145, 1148 (1981); Chisholm v. J.R. Simplot Co., 94 Idaho 628, 632, 495 P.2d 1113, 1117 (1972). We have recently stated that "substantial evidence is 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' " Idaho State Insurance Fund v. Calvin J. Hunnicutt, 110 Idaho 257, 260, 715 P.2d 927, 930 (1985).

II

With these standards of review established, and having concluded that the district court applied these standards in evaluating the evidence on the motion for directed verdict, we next review the record to determine whether the district court erred in concluding that plaintiffs failed to show by substantial evidence that the defendants' negligent conduct caused the accident. In our review, we acknowledge that the district court was in a better position to apply the substantial evidence test, since the court observed the witnesses' testimony, some of which related to gesturing and pointing out the specifics of exhibits describing features of the roadway. Since, on the record, we cannot observe this testimony, the trial court was in a better position to evaluate the evidence than we are.

A.

Regarding the granting of the directed verdict in favor of the contractor, Western Construction, Inc., this Court has previously held that a public works contractor, who has performed work according to plans and specifications, may not be found liable for any damages resulting from the construction. Black v. Peter Kiewit Sons Co., 94 Idaho 755, 757, 497 P.2d 1056, 1058 (1972); Gates v. Pickett & Nelson Constr. Co., 91 Idaho 836, 842, 432 P.2d 780, 786 (1967). Having fully reviewed the record, we find no substantial evidence produced by the plaintiffs showing that Western Construction did not adhere to the plans and specifications provided by the state. Philip Rumsey, resident engineer in charge of highway construction in the American Falls area, testified both for the plaintiffs and for the defendants that the plans for the detour were designed in his office and received approval from the highway department. He further testified that the plans were followed by the contractor. There was no substantial evidence otherwise. Accordingly, the trial court was correct in granting the directed verdict in favor of Western Construction, Inc. See Black v. Peter Kiewit Sons Co., supra.

B.

The plaintiffs' claim against the State of Idaho was based primarily upon their allegation that the 45 m.p.h. posted speed limit for the curve upon which the plaintiff Elce's truck tipped over was too fast. Additionally, plaintiffs claim that certain roadside conditions, such as the position of the barricades, inadequate shoulder width and other shoulder conditions, contributed to the accident. Accordingly plaintiffs allege that the State of Idaho was negligent in failing to bring all roadside conditions into conformance with engineering or design standards in effect at the time of the preparation of the detour design.

The liability of the State of Idaho in highway construction and design cases is limited substantially by the provisions of the Idaho Tort Claims Act. I.C. § 6-904 provides that:

"A governmental entity ... shall not be liable for any claim which:

....

"(8) Arises out of a plan or design for construction or improvement to the highways, roads, streets, bridges, or other public property where such plan or design is prepared in substantial conformance with engineering or design standards in effect at the time of preparation of the plan or design, approved in advance of the construction or approved by the legislative body of the governmental entity or by some other body or administrative agency, exercising discretion by authority to give such approval." (Emphasis added.)

In order to establish liability, the plaintiff must prove a claim which does not fall within the exception to governmental liability set out in I.C. § 6-904(8), and must establish that the governmental entity, or its employees acting within the course and scope of their employment, was "negligent or [committed] otherwise wrongful acts or omissions" which were the proximate cause of the plaintiff's injuries. See I.C. § 6-903.

Most of the evidence at trial dealt with the question of what engineering and design standards applied to detours around an interstate highway construction project, and whether or not...