McCluskey v. Handorff-Sherman, HANDORFF-SHERMAN

• Court: United States State Supreme Court of Washington
• Writing for the Court: MADSEN; ANDERSEN
• Citation: 882 P.2d 157,125 Wn.2d 1
• Docket Number: HANDORFF-SHERMAN,No. 60210-7
• Decision Date: 13 October 1994
• Parties: Nadine McCLUSKEY, individually, as guardian of her minor children, Justin McCluskey and Christina McCluskey, and as personal representative of the Estate of Wallace D. McCluskey, deceased, Respondent, v. Timothy M., a single male, Defendant, and The State of Washington, Petitioner.

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125 Wn.2d 1 882 P.2d 157 Nadine McCLUSKEY, individually, as guardian of her minor
children, Justin McCluskey and Christina
McCluskey, and as personal
representative of the Estate
of Wallace D.
McCluskey,
deceased, Respondent,
v.
Timothy M. HANDORFF-SHERMAN, a single male, Defendant,
and
The State of Washington, Petitioner. No. 60210-7. Supreme Court of Washington,
En Banc. Oct. 13, 1994.

[882 P.2d 158]

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Christine O. Gregoire, Atty. Gen., Jon P. Ferguson, Sr. Counsel, Michael A. Nicefaro, Jr., Asst., Seattle, for petitioner.

Edwards, Sieh, Wiggins & Hathaway, Charles K. Wiggins, Seattle, Stritmatter, Kessler & McCauley, Keith Kessler, Hoquiam, Warren, Kellogg, Barber, Dean & Fontes, Mark Barber, Renton, for respondent.

Stewart A. Estes, Seattle, amicus curiae for petitioner on behalf of Washington Defense Trial Lawyers.

Bryan P. Harnetiaux, Gary N. Bloom, Spokane, amicus curiae for respondent on behalf of Washington State Trial Lawyers Ass'n.

MADSEN, Justice.

At issue in this wrongful death action is whether the trial court erred in refusing to allow the State of Washington to defend its failure to improve a section of State Route (SR) 900 by fully explaining the considerations relevant to highway improvement under RCW 47.05, Washington's priority programming law.

On the afternoon of January 13, 1989, 16-year-old Timothy Handorff-Sherman was driving in his 1973 Mustang. He was accompanied by a few friends with whom he had shared several pipes of marijuana. It had been raining hard and had just started to snow. While heading eastbound on Martin Luther King Way (SR 900), Handorff-Sherman moved into the righthand lane to pass the car in front of him. As he accelerated and started to move back toward the lefthand

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lane the Mustang's tires lost traction on the wet roadway. The car slid across the 5-foot sand median and struck Wallace McCluskey's car, forcing it down an embankment. McCluskey was thrown from his car and died at the scene.

On February 9, 1990, McCluskey's widow filed suit against Handorff-Sherman and the State of Washington. Nadine McCluskey alleged that the State had "maintained a hazardous and unsafe roadway" and had "failed to adequately and properly separate eastbound and westbound traffic". Clerk's Papers, at 14. At trial, McCluskey presented expert testimony that the surface of the section of SR 900 at issue was too slippery, unreasonably dangerous, and a high frequency accident area. Her witnesses testified that the State could have corrected the danger by posting "Slippery When Wet" signs, cautionary signs regarding changing lanes and speed reduction advisory signs, by resurfacing the roadway, or by installing a median barrier.

The State denied that the section of SR 900 at issue was unreasonably dangerous, unusually slippery, or that it had an unusual accident rate. The State also asserted that the remedial measures proposed were contrary to industry standards.

The State wanted to argue, in the alternative, that it could not be held liable for failing to improve SR 900 because the Legislature did not authorize funding for improving this part of SR 900 before the McCluskey accident. To support this theory, the State offered the 1986 Priority Array, the 1987-89 Highway Construction Program, and the 1987-89 Transportation Appropriation Act. The Priority Array showed the status of each section of state highway in 1986 according to criteria specified by statute; the Highway Construction Program listed the cost of each [882 P.2d 159] project proposed for the next 2 years; and the transportation appropriation act listed the projects funded. Exs. 177, 178, 179. None listed the section of SR 900 at issue.

The court excluded these documents and also excluded evidence that SR 900 had not been selected for funding under the 1986 Priority Array. The court did allow the State

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to describe the priority-determining process in general. A state witness also explained the kinds of highway funds available to the State and the restrictions on them. The State was not allowed to argue, however, that highway improvement funds were limited and that such a limitation affected the lack of improvements to SR 900.

The State proposed lengthy jury instructions setting forth the law regarding priority programming for highway development and advising the jury that it could not find the State liable if it decided that the State acted in accordance with that law. The State also proposed an instruction on the theory of discretionary immunity, despite its earlier abandonment of that defense. The court declined to give these instructions.

Instead, the court instructed the jury that McCluskey claimed the State was negligent in maintaining an unsafe roadway, in failing to warn of the unsafe condition of the roadway, and in failing to properly separate the eastbound and westbound traffic by installing a median barrier. The court also instructed the jury that the State has a duty to exercise ordinary care in the maintenance of its public roads and that inherent in this duty "is the alternative duty either to eliminate a hazardous condition, or to adequately warn the traveling public of its presence". Clerk's Papers, at 719. The court further instructed that the jury's verdict should be for McCluskey if she proved only that "one or both of the Defendants acted, or failed to act, in one of the ways claimed by Plaintiff." Instruction 7; Clerk's Papers, at 712. The State did not take exception to any of these instructions.

The jury found the State and Handorff-Sherman each 50 percent liable, and awarded McCluskey $1,682,984.37. The verdict did not distinguish between the State's liability for failure to adequately maintain (repave or construct median barriers) versus its failure to adequately warn (sign); instead, the jury returned a general verdict of negligence against both Defendants. The trial court denied the State's motion for a new trial and entered judgment on the jury's verdict. The Court of Appeals affirmed. McCluskey v. Handorff-Sherman, 68 Wash.App. 96, 841 P.2d 1300 (1992). The court concluded

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that the State could not use evidence of the priority process to argue immunity from, or limits on, liability due to a lack of funds allocated to highway maintenance, indicating that "[t]he State cannot avoid responsibility for its fiscal decisions by stating that those decisions have assumed the status of law and thus are unassailable". McCluskey, at 109, 841 P.2d 1300.

The State sought discretionary review, arguing that it should not have been limited in explaining Washington's priority programming law and the financial restrictions it places on highway maintenance and improvement. ¹ This court granted the State's motion for discretionary review.

ANALYSIS

We begin our discussion by citing the fundamental rule that an action for negligence does not lie unless the defendant owes a duty of care to the plaintiff. Charter Title Corp. v. Crown Mortgage Corp., 67 Wash.App. 428, 432, 836 P.2d 846 (1992) (citing Atherton Condominium Apartment-Owners Ass'n v. Blume Dev. Co., 115 Wash.2d 506, 528, 799 P.2d 250 (1990)). Under the common law, the State of Washington has a duty to exercise ordinary care in the repair and maintenance of its public highways, keeping them in such a condition that they are reasonably safe for ordinary travel by persons using them in a proper manner. Meabon v. State, 1 Wash.App. 824, 827, 463 P.2d 789 [882 P.2d 160] (1970) (citing Provins v. Bevis, 70 Wash.2d 131, 138, 422 P.2d 505 (1967)). This obligation includes posting warning signs when required by law or when the State has actual or constructive knowledge that the highway is inherently dangerous or of such a character as to mislead a traveler exercising reasonable care. Bartlett v. Northern Pac. Ry., 74 Wash.2d 881, 882, 447 P.2d 735 (1968); Provins, 70 Wash.2d at 138, 422 P.2d 505.

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Washington statutes also discuss the State's responsibilities for providing safe highways. RCW 47.01.071 provides that the State Transportation Commission is responsible for proposing legislative policies to assure the development and maintenance of a comprehensive and balanced statewide transportation system which will meet the needs of the citizens of Washington for safe and efficient transportation services. RCW 47.05, entitled Priority Programming for Highway Development, specifies how this responsibility is to be realized. The purpose of the chapter is to establish a policy for matching limited funds with the areas of greatest need, as RCW 47.05.010 makes clear:

The legislature finds that anticipated revenues available for state highways for the foreseeable future will fall substantially short of the amount required to satisfy all of the state highway needs. It is the purpose of this chapter to establish a policy of priority programming for highway development having as its basis the rational selection of projects according to factual need, systematically scheduled to carry out defined objectives within limits of money and manpower, and fixed in advance with reasonable flexibility to meet changed conditions.

Former RCW 47.05.010.

Pursuant to this policy, the State Transportation Commission, which governs the Department of Transportation, divides the state into highway districts and divides available funds among the districts. Each district identifies projects it wants funded for a particular biennial period. The commission ranks the programs according to a formula based on factors including the structural condition of the pavement and fatal and nonfatal accidents. Former RCW 47.05.051(4). This information is compiled into a document called a Priority Array which is submitted to the Legislature for its use in authorizing and funding certain projects. McCluskey, 68 Wash.App. at 101 n. 3, 841 P.2d 1300. The commission may depart from the priority of projects established for limited reasons only, none of...