Meabon v. State

• Decision Date: 22 January 1970
• Docket Number: No. 2--39796,2--39796
• Court: Washington Court of Appeals
• Parties: Nancy MEABON, a minor by Morris Meabon, her Guardian ad Litem, Respondent, v. STATE of Washington, Appellant.

Page 824

1 Wn.App. 824

463 P.2d 789

Nancy MEABON, a minor by Morris Meabon, her Guardian ad

Litem, Respondent, v. STATE of Washington, Appellant.

No. 2--39796.

Court of Appeals of Washington, Division 3.

Jan. 22, 1970.

Rehearing Denied Feb. 20, 1970.

Slade Gorton, Atty. Gen., Theodore O. Torve, Joseph S. Montecucco, Asst. Attys. Gen., Olympia, for appellant.

Robert L. Fraser of Dano, Cone & Fraser, Ellensburg, for respondent.

MUNSON, Judge.

Defendant, State of Washington, appeals from a judgment awarding damages for personal injuries suffered by Nancy Meabon on June 17, 1965, when the car in which she was a passenger left a state highway due to the slippery condition of the roadway.

The mishap occurred on U.S. Highway 10, approximately four miles east of Ellensburg, on a patch of asphalt overlay laid in August of 1964. Because of the nature of the oil mixture used and the ensuing climatic conditions, the overlay became excessively oily within a short while. In an attempt to remedy this condition, a second sealer coat was applied in October of 1964, but, again, the type of oil used merely aggravated the excess accumulation of oil as the air temperature warmed the following spring and summer. This particular oil does not cure sufficiently in cold weather to hold down the gravel and thereby seal an overlay. As a result, its use for any purpose on a major highway east of the Cascades is forbidden by state highway department specifications between the middle of September and the following March. The defendant's maintenance superintendent, in charge of the Ellensburg area, knew it was too late to apply the second sealer coat in October, but felt the action was warranted as an attempt to remedy the dangerous condition which then existed.

The following spring the overlay continued to bleed and the accumulation of oil on the surface of the highway progressively increased so that the overlay became extraordinarily slippery when wet. During April and May of 1965, the patch was covered with sand and gravel, but to no avail. The condition remained unchanged.

On June 4, 1965--almost eight months after the maintenance superintendent initially recognized the danger thus created--'Slippery When Wet' signs were installed. The sign warning traffic in the direction plaintiff was traveling was 720 feet east of the patch and approximately 1500 feet from the place where the car skidded. However, no sign reducing the speed limit through this slippery area accompanied the warning sign. In fact, following the 'Slippery When Wet' sign was a '60 M.P.H.' speed-limit sign.

The Department of Highways Maintenance Manual, with which all maintenance employees are expected to be thoroughly familiar, contains a section on 'smooth, slippery areas.' The manual, which was not consulted by the maintenance personnel after they were aware of the above condition and prior to the accident, describes two methods by which the above condition could be remedied, I.e. by either scarifying the surface of the overlay or burning off the excess oil. Although the condition existed over a prolonged period and both remedies were readily available, neither method was attempted until late in July 1965. The burning process was then employed and the condition eliminated in 3 days.

On June 17, 1965, Miss Meabon, age 15, was a passenger in a car driven by her brother, Gary Meabon. They planned to go to Gary's wedding in Portland, Oregon, by way of Kirkland, Washington. After the wedding she was to accompany her parents on a vacation. It had been raining that morning and the highway was wet. At the moment the accident occurred, the Meabon car was passing another car at an approximate speed of 55 to 60 miles per hour. The Meabon car skidded off the roadway, overturned and injured his sister. There is no indication that Meabon applied his brakes or made any quick corrective movements which could have caused his vehicle to leave the roadway. He did not recall seeing the warning sign, and admitted he was driving faster than the flow of traffic through the area at the time.

The primary issue on appeal arises from the trial court's refusal to given an instruction submitting the question of the adequacy of warning devices.

As stated in Jurgens v. American Legion, Cashmere Post 64, Inc., 1 Wash.App. 39, 41, 459 P.2d 79, 81 (1969):

The elements of actionable negligence are (1) the existence of a duty, (2) a breach thereof, which was a proximate cause of, (3) a resulting injury. (Citing cases.)

The duty imposed upon the state in the maintenance of its public highways is the same as set forth for municipalities in Owens v. Seattle, 49 Wash.2d 187, 191, 299 P.2d 560, 61 A.L.R.2d 417 (1956), I.e., 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 in exercising ordinary care for their own safety. Provins v. Bevis, 70 Wash.2d 131, 138, 422 P.2d 505 (1967); Ulve v. Raymond, 51 Wash.2d 241, 317 P.2d 908 (1957); DeYoung v. Campbell, 51 Wash.2d 11, 315 P.2d 629 (1957); Bradshaw v. Seattle, 43 Wash.2d 766, 264 P.2d 265, 42 A.L.R.2d 800 (1953); Simmons v. Cowlitz County, 12 Wash.2d 84, 90, 120 P.2d 479 (1941); Berglund v. Spokane County, 4 Wash.2d 309, 103 P.2d 355 (1940).

As stated in Provins v. Bevis Supra, 70 Wash. at 138, 422 P.2d at 510:

At the outset, it should be observed that we are committed to the rule that, although a county is not an insurer against accident nor a guarantor of the safety of travelers upon its roadways, it is nevertheless obligated to exercise ordinary care to keep its public ways in a safe condition for ordinary travel. * * * And, this obligation includes the responsibility to post adequate and appropriate warning signs when such are required by law, or where the situation, to the county's actual or constructive knowledge is inherently dangerous or of such a character as to mislead a traveler exercising reasonable care. (citing cases.) Inherent in this duty pf ordinay care is the alternative duty either to eliminate a hazardous condition, or to adequately warn the traveling public of its presence. In Holmquist v. Grant County, 54 Wash.2d 376, 379, 340 P.2d 788 (1959) an instruction setting for this alternative duty, from which counsel based a portion of his argument, was upheld. Therefore, the question of the adequacy of the warning device is critical in determining the state's liability.

Plaintiff contends the giving of an instruction relating to warning devices would preclude her recovery under a theory of concurrent causation, I.e., the state's and the driver's negligence. To accept plaintiff's theory would impose upon the state a dual standard of care in the repair and maintenance of its public highways with regard to those using the highways, I.e., one applicable to drivers and another applicable to passengers. The state's compliance with the requirement of an adequate warning would be a defense from liability for injury to a driver, but not for injury to a passenger. Such a position is founded upon the reasonable foreseeability by the state of a driver's disregard for, or failure to see, a warning sign, resulting in a passenger's injury. The logical conclusion of this theory would result in the imposition of absolute liability upon the state for failure to eliminate dangerous highway conditions, resulting in injuries to passengers, without consideration of the adequacy of any warning of the dangerous condition. See Callahan v. City & County of San Francisco, 249 Cal.App.2d 696, 57 Cal.Rptr. 639, 643--644 (1967). Such is not the rule in Washington.

The standard of care required of the state in the maintenance of its public highways remains the same towards both the driver and his passengers, I.e., the traveling public. Nelson v. Seattle, 16 Wash.2d 592, 134 P.2d 89 (1943); 19 McQuillin, The Law of Municipal Corporations, § 54.48--49, 132--134. Until plaintiff proves a breach of the state's duty of ordinary care, the state has committed no legal wrong. In this context, a passenger's well-being is in the hands of his driver.

There is sufficient evidence in the record to require the giving of an instruction on the issue of the adequacy of the warning devices. Each party is entitled to have his theory of the case presented to the jury for its consideration; failure to do so constitutes reversible error. Nicholson v. Gibler, 1 Wash.App. 368, 461 P.2d 900 (1969).

Failure to instruct on this issue requires that a new trial be granted. However, since other assignments of error may arise on retrial, we shall consider them.

The second issue presented is closely related to the above. Defendant contends the trial court erred in failing to dismiss plaintiff's complaint as a matter of law, because the negligence of the state, if any, did not come within RCW 4.92.090, which establishes the state's tort liability. In other words, when the legislature required adoption of the Uniform Manual for Traffic Control Devices (RCW 47.36.020, .030, and .053) a standard of care is established. When the state has complied therewith, I.e., posting a prescribed warning sign, the state is not negligent as a matter of law. Defendant's contention is based upon Evangelical United Brethren Church of Adna v. State, 67 Wash.2d 246, 407 P.2d 440 (1965). That case is distinguishable. The injury to Miss Meabon arises from conduct within accepted concepts of negligence applicable to private persons or corporations, Provins v. Bevis, Supra, and not that area of governmental policy considerations contemplated by Evangelical.

Furthermore, compliance with the manual and the adequacy of the sign posted are relevant issues herein; particularly when viewed in terms of the state's failure to also post sign W--35, 'Advisory Speed' sign, the use of which is described in the same uniform manual as follows:

The Advisory Speed...