Hash v. State

• Citation: 807 P.2d 1363,247 Mont. 497
• Decision Date: 21 March 1991
• Docket Number: No. 90-251,90-251
• Parties: Charles L. HASH, Personal Representative of the Estate of Michael M. Scott, and Debbie Jo Scott, Plaintiffs and Appellants, v. The STATE of Montana, a Body Politic, Defendant and Respondent.
• Court: United States State Supreme Court of Montana

Page 1363

807 P.2d 1363

247 Mont. 497

Charles L. HASH, Personal Representative of the Estate of Michael M. Scott, and Debbie Jo Scott, Plaintiffs and Appellants, v. The STATE of Montana, a Body Politic, Defendant and Respondent.

No. 90-251.

Supreme Court of Montana.

Submitted on Briefs Nov. 15, 1990.

Decided March 21, 1991.

Kenneth E. O'Brien; Hash, O'Brien & Bartlett, Kalispell, for plaintiffs and appellants.

John Maynard, Chief Defense Counsel, Tort Claims Div., Dept. of Administration, Helena, I. James Heckathorn, and Murphy, Robinson, Heckathorn & Phillips, Kalispell, for defendant and respondent.

HARRISON, Justice.

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. Plaintiffs' 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), 803 P.2d 629, 636, 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, 803 P.2d at 636, 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, 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 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...