Leliefeld v. Johnson

• Decision Date: 18 February 1983
• Docket Number: No. 12983,12983
• Citation: 659 P.2d 111,104 Idaho 357
• Parties: Donald H. LELIEFELD and Jewel H. Leliefeld, husband and wife, Nabisco, Inc., a corporation, Plaintiffs-Respondents, Cross-Respondents, v. Wendell JOHNSON, d/b/a Panorama Contractors, Inc., a/k/a Panoramic Construction; Johnnie L. Carnline, Defendants-Respondents, Cross-Appellants, and The State of Idaho, Defendant-Appellant, Cross-Respondent.
• Court: Idaho Supreme Court

Page 111

659 P.2d 111

104 Idaho 357

Donald H. LELIEFELD and Jewel H. Leliefeld, husband and wife, Nabisco, Inc., a corporation, Plaintiffs-Respondents, Cross-Respondents, v. Wendell JOHNSON, d/b/a Panorama Contractors, Inc., a/k/a Panoramic Construction; Johnnie L. Carnline, Defendants-Respondents, Cross-Appellants and The State of Idaho, Defendant-Appellant, Cross-Respondent.

No. 12983.

Supreme Court of Idaho.

Feb. 18, 1983.

David H. Leroy, Atty. Gen., Lynn E. Thomas, Sol. Gen., Robert M. Tyler, Jr., of Elam, Burke, Evans, Boyd & Koontz, Boise, for defendant-appellant, cross-respondent.

Nick M. Lamanna of Cooke & Lamanna, Priest River, J. Donald Curran and Martin L. Salina of Delay, Curran & Boling, Spokane, Wash., for plaintiffs-respondents, cross-respondents.

Terry Lee Jensen of Jensen & Mills, Sandpoint, Stanley D. Moore of Winston & Cashatt, Spokane, Wash., for defendants-respondents, cross-appellants.

ON DENIAL OF PETITION FOR REHEARING

DONALDSON, Chief Justice.

On April 9, 1975, a traffic accident occurred on the Lightning Creek Bridge on Idaho State Highway 200 near Clark Fork, Idaho. While plaintiff-respondent Donald Leliefeld was driving east in his employer's truck, defendant-cross-appellant Johnnie Carnline was driving west in his employer's dump truck pulling a lowboy trailer loaded with a D-6 Caterpillar bulldozer. The minimum width of Carnline's load was 9'2"'' and the bulldozer blade extended beyond the right-hand edge of the trailer. At the time of the accident, I.C. § 49-913 provided that no vehicle using the Idaho highways could exceed eight feet in width without a permit from the state. Carnline had no permit.

A collision occurred on the bridge between the truck driven by Leliefeld and the bulldozer on Carnline's trailer. While the approach roadways were 22' wide, the bridge, which was built in 1937, was 20' wide from curb to curb. On neither the approaches nor the bridge were there warning signs concerning the bridge width. There was conflicting testimony as to which truck first entered the bridge. While crossing the bridge, the bulldozer blade caught on a bridge girder which caused the bulldozer to be displaced into the path of Leliefeld's oncoming truck. During the ensuing collision, Leliefeld was injured. Some time subsequent to the accident, warning signs were erected at this bridge.

The Leliefelds and his employer Nabisco brought suit against Carnline, and his employer Wendell Johnson, d/b/a Panorama Contractors, Inc., a/k/a Panoramic Construction, and the State of Idaho seeking to recover damages. The State answered and filed a cross-complaint against the other defendants Wendell Johnson, Panorama, and Carnline for damages to the bridge and for indemnity and contribution in the event the State was shown to be liable. In turn Carnline, Johnson, and Panorama filed a responsive pleading which counter-claimed against the Leliefelds and Nabisco for property damage and personal injuries to Carnline and cross-claimed against the State for damages and indemnity. Attorney fees were sought by all parties.

Prior to trial several motions in limine were made. Carnline, Johnson and Panorama moved for an order excluding all evidence that at the time of the accident they did not have a wide load permit. This was denied. The State moved for an order excluding all evidence of subsequent alterations made by the State to the bridge or the state highway which passes over it. This was denied. The State also moved for partial summary judgment on the issues of alleged liability of the State as a result of the plan or design for construction of the Lightning Creek Bridge. This motion was granted.

A jury trial was conducted at which evidence consisting of several exhibits and testimony was introduced by Leliefeld that the signing of the bridge was substandard and that bridge design standards had changed over the years. The State objected to the evidence as to design standards as being contrary to the order granting partial summary judgment which objection was overruled. Evidence was admitted over the State's objection that the bridge was signed subsequent to the accident. A police accident report was admitted over objection. After a motion at the close of the evidence, the court dismissed defendant Johnson on grounds that there was insufficient evidence to establish any liability on his part, but denied motions to dismiss the other defendants.

The State requested a jury instruction on the State's discretionary function defense which was refused. However, the court did give, over objection, an instruction that the State may lose its design immunity if conditions change sufficiently to produce a "dangerous condition." Carnline and Panorama requested a jury instruction which would have excluded jury consideration of the fact that no wide load permit had been obtained. This was denied and the court gave, over objections, instructions that a permit was required by statute for vehicles greater than eight feet in width and that violation of such a statute is negligence "unless compliance ... was impossible or something over which the party had no control placed him in a position of violation of the statute or an emergency not of the party's own making caused him to fail to obey the statute."

A special verdict was returned by the jury in which negligence was attributed as follows: Leliefeld (10%), Carnline (65%) and the State (25%). The jury found damages as follows: Donald H. Leliefeld ($400,000), Jewel H. Leliefeld ($20,000), and Nabisco ($13,946.82). Judgment was entered for Donald H. Leliefeld ($360,010.96), Jewel H. Leliefeld ($18,004.45), and Nabisco, Inc. ($12,536.73). Under I.C. § 6-926, the State subsequently moved to amend the judgment against the State to $100,000 plus costs. This motion was granted. The State's motion for judgment n.o.v. or a new trial and Carnline's and Panorama's motion for a new trial were denied. The State appeals and all other parties cross-appeal.

I.

The first issue presented is whether the placing or nonplacing of signs at the bridge was a discretionary function within the meaning of the Idaho Tort Claims Act [ITCA]. If it was, then the State is immunized from liability. I.C. § 6-904(1) provided at times relevant to this controversy ¹ that:

"EXCEPTIONS TO GOVERNMENTAL LIABILITY.--A governmental entity shall not be liable for any claim which:

1. Arises out of any act or omission of an employee of the governmental entity exercising due care, in the execution of a statute or regulation, whether or not the statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused." 1974 Idaho Sess.Laws ch. 167, p. 1423.

We have considered this exemption from liability in three other cases--McClure v. Nampa Highway District, 102 Idaho 197, 628 P.2d 228 (1981), Gavica v. Hanson, 101 Idaho 58, 608 P.2d 861 (1980), and Dunbar v. United Steelworkers of America, 100 Idaho 523, 602 P.2d 21 (1979), cert. denied, 446 U.S. 983, 100 S.Ct. 2963, 64 L.Ed.2d 839 (1980). In McClure and Gavica, we considered the application of the discretionary function exception with regard to actions which alleged negligence on the part of a governmental entity in maintaining or failing to warn of a known dangerous condition in or on a public highway. McClure and Gavica make it clear that the State is not immunized from liability when with respect to a public highway, the State maintains a known dangerous condition on the highway and fails to properly warn motorists of such a condition.

The State responds to McClure and Gavica by asserting that bridges are signed according to statewide standards promulgated by the Idaho Transportation Department. According to the State, the formulation of criteria governing the signing of bridges occurs at the state level and has no parallel in the private sector. The State directs our attention to plaintiffs' exhibit 58, a document delineating certain signs to be placed on various types of bridges. This document was formulated after four to five years of study by the state traffic engineer's office. The State argues that this is evidence that the decision to sign or not sign bridges is made at the state level for all of the bridges in this state and therefore has no parallel in the private sector. This would be cogent to our deliberations, if the theory upon which this case was tried was that these statewide signing and striping standards were inadequate, negligently promulgated or a cause of the accident. In such a case, the discretionary immunity accorded the State by I.C. § 6-904(1) would apply. However, this case was tried upon a different theory that this particular bridge was dangerous at the time of the accident, that the State knew that it was a dangerous condition, and yet failed to correct the dangerous condition, either by reconstructing the bridge or by warning of its characteristics. We are not persuaded that McClure and Gavica were wrongly decided or should not be applied. The declaration and existence of statewide standards are not talismanic and do not provide immunity from liability for breach of a duty to make safe or warn of known dangerous conditions on public highways.

The State argues that in Dunbar the discretionary immunity afforded by § 6-904(1) was available because the state mine inspector was applying statewide mine safety standards and there was no similar duty imposed in the private sector. Here, the State argues that the responsible state highway engineer simply was implementing statewide standards for the construction and signing of bridges. There are several flaws in this argument. Here, unlike Dunbar, the standards apply only to the State's own highway system; there is no attempt to regulate the conduct of third parties. Second, the individual highway...