Hunt v. State

• Decision Date: 20 April 1977
• Docket Number: No. 2-57891,2-57891
• Citation: 252 N.W.2d 715
• Parties: Thomas P. HUNT, Appellee, v. STATE of Iowa, Appellant.
• Court: Iowa Supreme Court

Page 715

252 N.W.2d 715

Thomas P. HUNT, Appellee, v. STATE of Iowa, Appellant.

No. 2-57891.

Supreme Court of Iowa.

April 20, 1977.

Richard C. Turner, Atty. Gen., John E. Beamer, Special Asst. Atty. Gen., and Fred M. Haskins, Asst. Atty. Gen., for appellant.

James R. Hamilton and C. Daniel Connell, Storm Lake, for appellee.

Heard by MOORE, C. J., and REES, REYNOLDSON, HARRIS and McCORMICK, JJ.

McCORMICK, Justice.

The State appeals adverse judgment in a tort claims suit. The questions are whether the evidence is sufficient to support the finding of negligence and whether the trial court erred in two rulings on evidence. We find no reversible error and affirm the trial court.

The action arose from a one-car accident on a frost-covered bridge on interstate 29 in Council Bluffs at about 6:20 a. m. on November 9, 1971. Plaintiff Thomas P. Hunt, then 20 years old, was driving north on the interstate. He was on his way from Omaha to Missouri Valley to go duck hunting. He had the lights of his 1970 Plymouth on high beam and was traveling at approximately 50 miles per hour. It was nearly dawn. The weather was clear and calm.

Bridge 14 is located on a portion of the interstate which passes through the north part of Council Bluffs. At the time of the accident it served approximately 4000 vehicles a day. The bridge is elevated and banked, curving in a northeasterly direction. It is slightly more than two lanes wide for traffic in each direction, has a median, and is about 366 feet long.

After leaving Omaha, Hunt had not observed any unusual road surface conditions. The approach to the bridge was clear and dry. When Hunt got about two car lengths onto the bridge, his car started to slide. The rear of the vehicle slid to the right. Then it went out of control and overturned in the median. Hunt received massive permanent injuries, causing paralysis in the lower part of his body.

An investigating police officer also skidded on the bridge surface when he arrived at the scene of the accident. He observed that the bridge surface was icy and had not been sanded or salted. He saw that the south bound lanes of the bridge were also icy. The pavement and bridge approaches were free of ice.

This action was brought under the Tort Claims Act, Code chapter 25A. The statute provides for trial to the court at law. § 25A.4. After trial, the court entered its findings of fact, conclusions of law and judgment, holding for Hunt and awarding him damages of $501,750. In this appeal the State contends the court erred in finding the evidence sufficient to establish the State's negligence, in overruling an objection to the qualifications of a witness who expressed an opinion as to the probability of frost formation on the bridge, and in overruling an objection to admissibility of the consumer price index. The State does not challenge the amount of the judgment.

I. Sufficiency of evidence of negligence. The issue of negligence is ordinarily for the trier of fact. Only in exceptional cases may it be decided as a matter of law. The trial court's findings of fact in a case tried to the court at law have the force of a jury verdict. In our review, we view the evidence in its light most favorable to the judgment and construe the court's findings liberally to support the result. We need only consider evidence favorable to the successful party, even if it is contradicted by other evidence. DeYarman v. State, 226 N.W.2d 26, 27 (Iowa 1975); Stanley v. State, 197 N.W.2d 599, 604 (Iowa 1972). We recite the evidence herein with these principles in mind.

With exceptions not applicable here, the State is liable for its negligence "in the same manner, and to the same extent as a private individual under like circumstances * * *." § 25A.4, The Code.

The State's duty to maintain its highways is statutory. § 313.36, The Code, 1971 ("Primary roads shall be maintained by the state highway commission * * *."); cf. §§ 313.36, 307.24, The Code, 1975.

This duty requires the State to exercise ordinary care to maintain its highways in a safe condition and to warn the traveling public of conditions which endanger travel, whether caused by a force of nature or by the act of third persons. Ehlinger v. State, 237 N.W.2d 784, 788-789 (Iowa 1976); State v. Abbott, 498 P.2d 712, 726 (Alaska 1972); Restatement (Second) of Torts § 349, comment b.

The fighting issue on the question of sufficiency of evidence of negligence in the present case is whether the State could reasonably be charged with constructive notice of the frost condition on bridge 14 and a reasonable opportunity to remedy it.

The concept of constructive notice includes an obligation to make further investigation when from what is known an ordinary prudent person would recognize such necessity:

It is not necessary that the actor should realize that the circumstances surrounding him are such as to make his conduct likely to cause harm to another. It is enough that he should realize that his perception of the surrounding circumstances is so imperfect that the safety or danger of his act depends on circumstances which at the moment he neither does nor can perceive. In such case it is negligent for him to act if a reasonable man would recognize the necessity of making further investigation. Restatement (Second) of Torts § 289, comment j.

Those who have the duty to maintain highways are required to make reasonable use of weather information to anticipate adverse road conditions:

The duty of the public authority to use ordinary care in keeping its highways in a safe condition for public travel involves the anticipation of defects that are the natural and ordinary result of use and climatic influences, and it may be charged with constructive notice of their existence by reason of its failure so to anticipate them and its neglect to make sufficiently frequent and careful examinations or inspections to enable it to discover them. 39 Am.Jur.2d Highways, Streets, and Bridges § 419 at 819.

Hunt sought to meet his burden on the issue of constructive notice by introducing evidence that the State breached a procedure in its own highway maintenance manual which, if followed, would have disclosed a high probability of frost on the bridge in time for the State to have sanded or salted the bridge surface well before the accident.

The highway maintenance manual contains policies and procedures for use by department personnel in carrying out the State's responsibilities to the public in maintenance of state highways. It is a looseleaf publication in two volumes, periodically supplemented to reflect changes. At all times material here, the manual contained a statement of policy and procedure regarding frost on bridge floors. This statement was added to the manual January 1, 1965. It was part of the evidence in this case.

In its entirety, it provides:

Quite often in the fall and spring, when the temperature drops to 32o or below, heavy frost will form on bridge floors. The reason for this is that the bridge floor cools down more rapidly than the pavement which is in contact with the ground. Frost usually occurs on nights when there is little or no wind.

Frosty bridge floors, when the pavement is normal, are a definite hazard to traffic as the driver will not be expecting or prepared for the slippery condition of the bridge floor. Therefore, frosty bridge floors must be treated with either salt or abrasives on the roads that are in the salt program or abrasives on other roads as soon as the frost appears.

In 1957 the U.S. Weather Bureau described the conditions under which frost would occur as follows:

"Dew or frost will usually occur on quiet nights with little or no wind, when the temperature of the air falls to the dew point. The latter is a computed figure and is the temperature at which the air would be saturated assuming a constant absolute humidity. The 32 degree temperature is taken as the dividing line between dew and frost.

On a clear night the loss of heat from a bridge floor is more rapid than from the pavement, since there is conduction of heat to the pavement from the ground. This means that the air in immediate contact with the bridge floor will reach the dew point earlier and dew or frost will be deposited sooner. Also the bridge is likely to be located in a relatively low area, with cold air draining slowly into the area. This accentuates the cooling process, with the bridge located in what is commonly called a 'frost pocket', an area where frost is more frequent than in surrounding areas.

With this in mind, I think that we can arrive at a few rules 'of thumb' which would be helpful in forecasting the occurrence of frosts on bridge floors. In the afternoon secure from the nearest Weather Bureau the forecast for the night and also the current dew point. In applying the temperature forecast to the bridge floor, lower the minimum temperature expected six to eight degrees. Sometimes it would be even lower but that amount should suffice in most instances.

Rule: If little or no wind and no low clouds are forecast and the expected minimum temperature (at the bridge) is as low or lower than the dew point, and the dew point is below 32o , expect frost to form on the bridge floor".

If you are in the vicinity of a U.S. Weather Bureau station, in the afternoon obtain from (it) the dew point and forecast for temperatures and possibility of frost forming on bridges. If the dew point is 32o or lower and the forecast temperature less say 6o equals, or is lower than, the dew point there is likely to be frost on the bridge floors on a quiet night with little wind and no low clouds.

Where there is frost on bridge floors be sure to treat the bridge floors with salt or abrasives.

The State admittedly did not follow this procedure. We have held violation of such a procedure is evidence of negligence:

Pertinent portions of the maintenance manual of the Iowa State Highway Commission are in evidence. * * *. The violation...