Martin v. State Highway Commission

• Decision Date: 26 January 1974
• Docket Number: No. 47226,47226
• Citation: 518 P.2d 437,213 Kan. 877
• Parties: Darrell A. MARTIN, Conservator for Kerry N. Martin, a minor, Appellee, v. STATE HIGHWAY COMMISSION of Kansas, Appellant.
• Court: Kansas Supreme Court

Page 437

518 P.2d 437

213 Kan. 877

Darrell A. MARTIN, Conservator for Kerry N. Martin, a minor, Appellee, v. STATE HIGHWAY COMMISSION of Kansas, Appellant.

No. 47226.

Supreme Court of Kansas.

Jan. 26, 1974.

Rehearing Denied March 6, 1974.

Syllabus by the Court

1. The state's liability for a defect in a state highway is purely statutory, and the state has no liability under the statute (K.S.A. 68-419) unless the alleged defect in the state highway comes within the purview of its terms, and such determination is in the first instance a question of law for the court. The court has steadfastly adhered to the proposition that there is no legal foot-rule by which to measure conditions generally and determine with exact precision whether a condition in a state highway constitutes a defect. In the final analysis it is the policy of the Supreme Court to handle each case separately and to either include it in or exclude it from the operation of the statute.

2. While a dangerous condition in a state highway may be a defect in the highway, the dangerous condition is not per se a defect under the statute-one creating liability. In addition to being dangerous, a condition must also be one the legislature is deemed to have intended to fall within the statute creating liability.

3. Where a jury is asked in a special question to specify which of several claimed deficiencies it finds to be the 'defect or defects' in the highway which caused plaintiff's injuries, and the jury specifies only one, the highway commission is thereby acquitted of all other charges of defect.

4. Broadly speaking, highway defects may be categorized as 'design' defects which are built into a highway at the time it is designed and constructed, and 'maintenance' defects which arise by reason of the passage of time.

5. Regardless of whether a condition is characterized as a 'design' defect or a 'maintenance' defect, liability must be predicated on either (a) a failure to comply with a specific legislative mandate or (b) the existence of a condition creating actual peril to persons using the highway with due care.

6. While an apparently adequate design may prove to be unduly hazardous in practice, in the absence of evidence showing such a practical result the adequacy of a highway design is judged by the conditions prevailing at the time it is adopted and not in the light of later experience or changing conditions.

7. The state highway commission is not liable for an alleged defect based solely on errors or defects in the original design or plan of a highway unless the plan or design was known to the commission to be manifestly dangerous to users of the highway.

8. An unguarded bridge pillar almost ten feet from the edge of a highway cannot be said to be 'manifestly dangerous' to persons using the highway with due care.

9. The record in a highway defect case is examined and it is held that the absence of a guardrail at the intersection in question (a) did not contravene any legislative command, (b) was not manifestly dangerous at the time the intersection was planned, and (c) had not proved unduly hazardous for normal travel in practice. The absence of a guardrail, therefore, could not be found to be a highway defect, and the issue should not have been submitted to the jury.

Cahrles S. Schnider, of Schnider, Shamberg & May, Kansas City, argued the cause, and Paul W. Clark, Staff Atty., of the State Highway Commission, Topeka, was with him on the brief for appellant.

Charles S. Fisher, Jr., of Fisher & Benfer, Chartered, Topeka, argued the cause, and Jerry R. Palmer and Robert D. Ochs, Topeka, were with him on the brief for appellee.

FOTH, Commissioner:

This is an appeal by the state highway commission from a judgment against it for personal injuries attributed to an alleged highway defect.

In the early morning hours of January 5, 1969, nineteen-year-old Kerry N. Martin was a passenger in a car owned and driven by his friend, Luke Franzen. The boys had been on a double date, spending the evening at Luke's sister's house in Topeka listening to music, drinking beer and eating pizza. Some time after midnight they took their dates home, dropping one girl off in Cullen Village, at the south edge of Topeka, and the other at her home in rural southwestern Shawnee county. Their route home took them to state highway K-4, which runs north until it joins interstate 70 a few miles west of Topeka.

The intersection is of the type commonly employed where a secondary road gives access to an interstate highway. K-4 is twenty-four feet wide where it approaches and passes under the four lanes of I-70. Coming from the south, those proceeding east, toward Topeka, make a right turn onto an access road some 200 feet south of the interstate and go up a ramp into the eastbound lanes. Those going west, toward Junction City, proceed under the interstate, make a left turn, and go up a ramp into the westbound lanes. The interstate overpass is supported by concrete pillars, either 9 feet, 3 inches or 9 feet, 4 3/4 inches from the edge of the K-4 pavement, depending on whose tape measure was more accurate.

Just south of the overpass is a sign, mounted on two steel supports, marked 'Junction City,' with an arrow indicating a course straight ahead, then sharp left. Several hundred feet to the sough of the intersection, at the crest of a slight hill, there was the customary large information sign indicating the presence of the intersection, diagramming the overpass, and showing the alternative routes.

At about 2:00 a.m. the car containing the two boys approached the intersection from the south, passed the access road leading to the estabound lanes, went off the right (east) side of the road, sheared off the 'Junction City' sign, and literally wrapped itself around the first pier supporting the interstate overpass. The car left skid marks measured by one witness the next day at 448 feet, and estimated by others at as much as 100 feet more or less. Plaintiff's expert put the car's speed at 56 miles per hour at the time it hit the pillar; the commission's experts had different opinions, but the differences are not significant. The car was obviously going considerably faster before it began its skid. The skid marks indicated to everyone's satisfaction that as it skidded the car began rotating to the right, so that at the time it hit the pillar the front end angled 39 degrees to the right of the center line of the roadway. Thus, it was the left side of the car which struck the pillar.

Luke Franzen, the driver, was killed-probably instantly. Kerry received severe injuries, including brain stem damage which prevents him from walking without mechanical and human assistance, and from communicating orally. This action was brought on his behalf by his father as his conservator. The severity of his injuries may be judged from the fact that in its appeal the commission makes no claim that the $600,000 verdict was excessive or not supported by the evidence.

What the commission does contend, first and foremost, is that as a matter of law there was no highway defect, and the issue should not have been submitted to the jury. The contention was made below by motion for directed verdict and motion for judgment notwithstanding the verdict, and is urged most vigorously on appeal. A majority of the court is of the opinion that the contention is sound.

At the outset it should be noted that at trial some eight different conditions, including improper and inadequate markings, or warnings, were urged by the plaintiff as making the highway defective. However, in answer to a special question as to the 'defect or defects' which caused the accident, the jury's answer was 'Absence of guardrail.' By that answer the commission was acquitted of all other charges of defect. Cf. Elliott v. Chicago, Rock Island & Pac. Rld. Co., 203 Kan. 273, 454 P.2d 124; Stevens v. Allis-Chalmers Mfg. Co., 151 Kan. 638, 100 P.2d 723; Walls v. Consolidated Gas Utilities Corp., 150 Kan. 919, 96 P.2d 656; Jones v. A., T. & S. F. Rly. Co., 148 Kan. 686, 85 P.2d 15; Rasing v. Healzer, 157 Kan. 516, 142 P.2d 832. The sole question in this court, then, is whether the absence of a guardrail protecting this particular pillar constituted a 'defect' in the highway.

In such a case the rule has always been that, 'While the question of what condition in a highway constitutes a defect may in some cases be one for the jury, this court can say whether a particular condition is such as was intended by the legislature to render the highway commission liable.' (Phillips v. State Highway Comm., 146 Kan. 112, 115, 68 P.2d 1087, 1088.) Put another way:

'The state's liability for a defect in a state highway is purely statutory, and the state has no liability under the statute (K.S.A. 68-419) unless the alleged defect in the state highway comes within the purview of its terms, and such determination is in the first instance a question of law for the court. The court has steadfastly adhered to the proposition that there is no legal foot-rule by which to measure conditions generally and determine with exact precision whether a condition in a state highway constitutes a defect. In the final analysis it is the policy of the Supreme Court to handle each case separately and to either include it in or exclude it from the operation of the statute.' (Brown v. State Highway Commission, 202 Kan. 1, 444 P.2d 882, Syl. 2.)

This case-by-case approach has been necessary because the statute makes no attempt to define the conditions which will liability beyond speaking of a 'defective bridge or culvert on, or defect in a state highway.' See the discussion of this problem in Gorges v. State Highway Comm., 135 Kan. 371, 373, 10 P.2d 834. The same may be said of K.S.A. 68-301, imposing similar liability on counties and townships, and the court has treated both statutes in the same way. While some apparent inconsistencies may result from most common are...