Kaatz v. State

Decision Date17 September 1975
Docket NumberNos. 2259,2291,s. 2259
Citation540 P.2d 1037
PartiesJeanne KAATZ, Administratrix of the Estate of Donald E. Kaatz, Deceased, Appellant, v. STATE of Alaska et al., Appellees. STATE of Alaska et al., Cross-Appellants, v. Jeanne KAATZ, Administratrix of the Estate of Donald E. Kaatz, Deceased, Cross-Appellee. Jeanne LINDLEY, Representative of the heirs of Ronald Lindley, Deceased, and Elac, Ltd., an insurance corporation, Appellants, v. STATE of Alaska et al., Appellees. STATE of Alaska et al., Cross-Appellants, v. Jeanne LINDLEY, Representative of the heirs of Ronald Lindley, Deceased, and Elac, Ltd., an insurance corporation, Cross-Appellees.
CourtAlaska Supreme Court

M. T. Thomas and W. G. Ruddy of Robertson, Monagle, Eastaugh & Bradley, Juneau, for appellants, Jeanne Kaatz, Jeanne Lindley and others.

Allen T. Compton, Juneau, for appellees.

Before RABINOWITZ, C. J., and CONNOR, ERWIN and BOOCHEVER, JJ.

OPINION

CONNOR, Justice.

This appeal and cross-appeal result from a superior court ruling which denied any recovery to two wrongful death claimants.

We must decide whether the trial court erred in finding that the negligence of the State of Alaska caused the accident which took the decedents' lives. Additionally, we must decide whether the trial court erred in finding that the decedents' own negligence also contributed to their demise. Finally, if the court below did not err with regard to its findings of fact, we must determine whether the doctrine of contributory negligence should continue to operate as a complete bar to all recovery in cases of this type.

I.

The decedents, Ronald Lindley and Donald Kaatz, were employed by the Burgess Construction Company in early December 1970. At that time the company was working on a project in Wrangell, Alaska. The project required gravel, which the company customarily obtained from Reid's gravel pit, located three miles south of Petersburg, Alaska, just off the Mitkof Highway.

In order to transport the gravel from the Petersburg area to Wrangell, the following procedure was usually utilized. Donald Kaatz, having taken up temporary residence in the town of Petersburg, readied the gravel at the pit for transportation to Wrangell. Periodically, the Burgess Construction Company would send a barge up the Wrangell Narrows to Petersburg. Before leaving Wrangell, the company would place a front-end loader on the barge. Ronald Lindley, an experienced operator of front-end loaders, would accompany the vessel to the Petersburg barge dock, located approximately four miles south of town.

Kaatz would meet the barge at the dock and, together with Mr. Lonnie Dreka, who supervised the operation, he would help to prepare the barge to carry the gravel back to Wrangell. When this was done, Kaatz and Dreka would drive Kaatz' pickup truck along the Mitkof Highway to the gravel pit, which was one mile north of the barge dock. Lindley would follow, driving the front-end loader.

When the men reached the gravel pit, Lindley would use the loader to fill a truck with gravel. The vehicle was then driven back to the barge dock, where the gravel was placed onto the vessel, along with the front-end loader. Dreka and Lindley then would accompany the barge back to Wrangell and unload it. Kaatz would return to his chores in and around Petersburg.

On the evening of December 9, 1970, the barge arrived at the Petersburg dock around 7:00 p. m. Kaatz met the barge when it arrived. Lindley, Dreka and the front-end loader were on board. The weather was overcast, with intermittent rain and drizzle. The temperature throughout the day had hovered in the mid to low thirties.

On this particular evening Ronald Lindley did not wait for Dreka to finish preparing the barge for loading. Instead, he and Kaatz set out together in the front-end loader, headed north towards the gravel pit. When the balloon-tired vehicle had traveled approximately half of the one mile distance from the barge dock to the gravel pit, it began to descend a slight grade on the Mitkof Highway. At the base of the grade, the road turned to the right. The vehicle did not reach that curve because, as the loader descended the grade, it toppled off the side of the northbound lane over an embankment. Lindley and Kaatz were both killed.

The widows of these men each brought wrongful death actions against the State of Alaska. They alleged that the state was negligent in that it had failed to adequately maintain the icy road, so that it would be safe for vehicular traffic. Judge Victor D. Carlson tried the case and rendered a verdict for the defendants. In doing so, he specifically concluded that '(t)he negligence of the State of Alaska (was) a cause of the death of Messrs. Lindley and Kaatz.' However, he also found that the icy and very slippery condition of the Mitkof Highway on the evening of December 9, 1970, 'was known to Mr. Kaatz before he climbed into the cab of the loader and it became known to Mr. Lindley immediately when the vehicle proceeded onto the highway.' In addition, he found that it was 'unreasonable for any person experienced with a front-end loader to operate such a vehicle on the highway' under those conditions. He thus concluded that the contributory negligence of the decedents was a complete defense to their claims. 1

The appellants contend that Judge Carlson clearly erred in finding that the decedents' conduct constituted contributory negligence. Alternatively, they urge us to abandon the doctrine of contributory negligence and adopt a 'pure' comparative negligence formula instead.

The state, in its cross appeal, contends that the court erred in finding that it was negligent in its maintenance of the road and that such negligence caused the deaths of Lindley and Kaatz. The state also argues that Judge Carlson did nor err in finding that the decedents were negligent and urges us not to abandon the doctrine of contributory negligence in favor of comparative negligence. The record presented in this case requires us to address each of the contentions that has been raised.

II.

We shall begin our analysis by determining whether the trial court erred in finding that negligence on the part of both the state and the decedents caused the accident. At the outset it is useful to restate the standard for review of judge-tried cases in which all pertinent claims of error are predicated on an assertion of insufficient evidence. In Alaska Foods Inc., v. American Manufacturer's Mutual Insurance Co., 482 P.2d 842, 848 (Alaska 1971), we stated:

'The rule is this: Under Civil Rule 52(a) we shall not set aside the finding of fact of a trial judge unless it is clearly erroneous. A finding is clearly erroneous when, although there may be evidence to support it, we are left with the definite and firm conviction on the entire record that a mistake has been committed.

This rule applies to any finding, regardless of the nature of the evidence upon which it is based. The only difference between our review of findings based on oral testimony, and those based on documentary evidence or undisputed facts, is that in the former case we must pay some deference to the trial judge's assessment of the credibility of witnesses, whereas in the latter case, we need not. It is because of the deference we pay to the trial judge's assessment of credibility of witnesses where there is oral testimony that we have characterized our scope of review in cases where there is no oral testimony as being a 'broader' type of review. Even in the latter situation, clear error must appear under the rule we apply.

The clearly erroneous standard, as we apply it, means something more than merely showing it is more probable than not that the trial judge was mistaken. We must be convinced, in a definite and firm way, that a mistake has been committed. We must be well persuaded by the party seeking to set aside the trial judge's findings before we will hold he was wrong.' (footnotes omitted) 2

With this standard in mind, we turn to the factual issues in this case.

The state, in its cross appeal, contends that its highway maintenance crew was not negligent in having failed to sand the Mitkof Highway before the accident occurred.

In State v. Abbott, 498 P.2d 712 (Alaska 1972), we helld that the state has a duty to exercise reasonable care to maintain Alaska's highways in safe condition. 3 That duty certainly extends to hazards created by ice and snow.

A breach of this duty of care occurs whenever lack of reasonable road maintenance exposes a person to an unreasonable risk of harm. In Abbott we stated:

'In order for a plaintiff to show that the state exposed him to an unreasonable risk of harm he would have to demonstrate that the likelihood and gravity of the harm threatened outweighed the utility of the state's conduct and the burden on the state for removing the danger. In making that determination in the case at bar, all of the following factors would be relevant: whether the state had notice of the dangerous condition, the length of time the ice and snow had been on the highway, the availability of men and equipment, and the amount of traffic on the highway.' 498 P.2d at 725. (footnotes omitted, emphasis in original)

In the present case, the evidence clearly supports a finding of negligence on the state's part.

Evidence at trial established that by 6:00 p. m. on the date of the accident, the state had both actual and constructive notice regarding the dangerous condition of the highway. For example, testimony established that by noon the road was dangerous, and that by 5:00 p. m. it was extremely dangerous, the worst that some Petersburg observers had ever seen. In a deposition, the school bus driver stated that he had alerted school authorities of the dangerous road conditions in mid-afternoon. Indeed, the state's road maintenance foreman in Petersburg, Mr. Cecil H. Donahue, conceded that he drove the road between 5:00 and 6:00 p. m., and he knew then that...

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