Pohl v. Cnty. of Furnas

• Decision Date: 26 June 2012
• Docket Number: 11–3081.,Nos. 11–3044,s. 11–3044
• Parties: Juston POHL, Appellee/Cross–Appellant, v. COUNTY OF FURNAS, a Nebraska Political Subdivision, Appellant/Cross–Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

682 F.3d 745

Juston POHL, Appellee/Cross–Appellant,

v.COUNTY OF FURNAS, a Nebraska Political Subdivision, Appellant/Cross–Appellee.

Nos. 11–3044, 11–3081.

United States Court of Appeals,

Eighth Circuit.

Submitted: May 16, 2012.

Filed: June 26, 2012.

Thomas J. Culhane, argued, Heather B. Veik, on the brief, Omaha, NE, for Appellant/Cross–Appellee.

Maren Lynn Chaloupka, argued, Scottsbluff, NE, for Appellee/Cross–Appellant.

Before MURPHY, BENTON, and SHEPHERD, Circuit Judges.

MURPHY, Circuit Judge.

After Juston Pohl was injured in an automobile accident in Furnas County, Nebraska, he brought this negligence action against the county. Pohl alleged that the accident was caused by the county's failure to have a properly placed and maintained road sign at the scene. The county responded that the accident was caused by Pohl's own negligent driving. The case was tried to the court ¹ which found both parties negligent, apportioning 60% of the negligence to the county and 40% to Pohl, and awarding Pohl $407,163.68 in damages. The county appeals, and Pohl cross appeals. We affirm.

I.

Juston Pohl, a resident of Michigan, traveled to rural Furnas County, Nebraska in December 2007 for a hunting trip and stayed at the farm of family friends Kimberly and Delaine Soucie. A few days after his arrival, he drove to a high school basketball game in nearby Cambridge, Nebraska. At around 9 p.m. that evening, he began his return trip to the farm traveling south on Highway 47. Light snow was falling.

The Soucies' farm is located two miles west of Highway 47 on Road 719, but Pohl mistakenly turned west onto Drive 719 which is located a half mile north of Road 719. Drive 719 is a gravel road that does not have a posted speed limit but is subject to a general statutory limit of 50 miles per hour. SeeNeb.Rev.Stat. § 60–6,186(1)(c). Unlike Road 719 which continues in a straight line west of Highway 47, Drive 719 has a ninety degree curve one mile after its intersection with Highway 47. At the time of Pohl's accident, a posted sign was placed at least 110 feet in front of the curve. The sign was two feet square with a yellow background and contained a black arrow with a ninety degree bend.

After turning onto Drive 719, Pohl accelerated to 63 mph, traveling with his high beam headlights on. When Pohl neared the warning sign, he braked too late to prevent the car from missing the curve and going off the road. The car hit an embankment, rolled, and came to rest upside down in a culvert. Pohl lost consciousness. When he came to, he realized he could not move his legs. Since he was unable to walk, he remained in the car all night hoping to be rescued. No help had arrived by daybreak, and Pohl managed to drag himself to a nearby farmhouse where the residents called an ambulance. It was later determined that he had a fracture and cord compression in his thoracic spine as well as frostbite in his feet. He underwent a decompression and fusion to treat the spinal injury.

Pohl sued the county for common law negligence under the district court's diversity jurisdiction. He alleged that his injuries were the result of the county's negligent placement of the sign warning about the curve and its negligent failure to maintain it. He sought damages for his medical expenses, physical pain and mental suffering, and lost wages.

At trial Pohl offered his own testimony and that of a traffic engineer and other lay witnesses. Pohl testified about the night of the accident and his injuries. Although it had been snowing that evening, Pohl explained that he had not needed to clear his windshield when leaving town, that the snow had not impeded his view, and that the car had had normal traction on the road. Pohl said that when he turned onto Drive 719, he believed that he was on Road 719 with a “straight shot” to the Soucies' farm. He testified that he had no memory of that night from shortly after turning onto Drive 719 until he regained consciousness after the accident. Thus, he did not remember seeing the sign or braking prior to leaving the roadway.

Three members of the Soucie family who had attended the same basketball game testified that the snow that night had not impaired driving conditions either by making roads slippery or reducing visibility. They also testified that they had driven on Drive 719 with high beam headlights in the past. After being shown flash photographs of the traffic sign made after Pohl's accident, they stated that the photos accurately depicted how the sign would have looked to a night driver using high beams.

Ronald Hensen, a traffic engineer, offered expert testimony regarding the sufficiency of the sign. He testified that the sign did not comply with the standards set by the United States Department of Transportation's Manual on Uniform Traffic Control Devices (the Manual), which governs traffic control signs in Nebraska. SeeNeb.Rev.Stat. §§ 60–6,118, 60–6,121; see also23 C.F.R. § 655.601 (incorporating the Manual by reference into the Code of Federal Regulations). The sign was deficient, he said, because it was heavily scratched and thus not retroreflective. The word “retroreflectivity” is defined in the Manual as a surface property “allow[ing] a large portion of the light coming from a point source to be returned directly back to a point near its origin.” Manual § 1A.13(62).² Hensen explained that because the sign lacked retroreflectivity, the 110 foot distance between the sign and the curve was not enough to provide drivers adequate notice of the curve ahead. He testified that a distance of at least 300 feet would have been needed to comply with the Manual and that “I don't know that I've ever seen in place a sign that defective.” In discussing the accident, he explained that had Pohl been traveling at the speed limit of 50 mph, he would have entered the curve at a speed of 45 mph and would have still left the roadway.

The county's case consisted of two expert witnesses and hundreds of photographs of the accident scene. Gregory Vandenberg, a Nebraska state trooper who specializes in accident reconstruction, testified that following the crash he had analyzed data from the car's airbag control module which is also referred to as the black box. The black box records the vehicle's speed and braking pattern for the five seconds prior to deployment of the airbag. Based on these data he determined that the car had been traveling at 63 mph on Drive 719 and that Pohl had applied the brakes when he was closely aligned with the sign, slowing the car to 48 mph at the time it left the roadway. Vandenberg initially testified that he had assumed that Pohl had braked in response to seeing the sign, but later clarified that the braking could have been in response to viewing the actual curve ahead or in response to some other stimulus. If Pohl had been traveling at the speed limit and had braked when his car was aligned with the sign, the trooper's opinion was that the car would have slowed to a speed where Pohl could have safely negotiated the curve. He also explained that had Pohl been traveling at the speed limit but failed to steer, he would have left the roadway at 15 mph and had a less severe accident because the car likely would have stopped before colliding with the embankment.

Traffic engineer Jerry Graham also testified for the county. Based on flash photographs of the sign taken at night, Graham concluded that the sign was “faded” but had “some retroreflectivity to it.” He further testified that after investigating the curve on Drive 719, he determined that it could be safely navigated at 30 mph. Based on this observation and the 50 mph speed limit, he concluded from a table in the Manual that any warning sign should have been placed at least 100 feet from the start of the curve. See Manual tbl.2C–4. The sign's placement 110 feet from the curve was therefore in compliance with the Manual and would have “provided a reasonable and prudent driver ... with the information necessary to reasonably, safely and lawfully use Drive 719.” On cross examination he conceded, however, that calculations based on Table 2C–4 assume that a sign is legible when a driver is 250 feet from it. See id. n. 1.

II.

In its findings of fact, the district court determined that the sign was abraded and lacked retroreflective paint. It was therefore not legible to a nighttime driver traveling with headlights until the driver was within 100 feet of the sign. The court also found that Pohl had “reacted to the left-hand turn warning sign—or to some other indicia of danger—when his car was closely aligned with the sign.” Had Pohl been traveling at the speed limit of 50 mph and all other variables remained constant, the court determined that

his car would have gone off the road at the same location at a speed of 15 miles per hour. If the car reached the embankment at all, the impact would have been much less severe, and, in any event, the car would have come to rest before reaching the culvert.

The district court found that the county was negligent because of the “combination of the sign's lack of retroreflectivity and its placement. Had the sign been retroreflective, its placement in proximity to the curve may have been adequate.” It further found that this negligence and Pohl's negligence in driving 13 miles over the speed limit were the proximate causes of his accident and injuries. In assessing the responsibility for the accident and Pohl's injuries the court allocated 60% of the negligence to the county and 40% to Pohl. The district court then calculated that Pohl was entitled to $678,606.14 in damages for medical expenses and pain and suffering, and awarded him $407,163.38 following a reduction for his comparative negligence.

The county appeals, arguing that the district court erred by finding that it was negligent in its maintenance and placement of the sign, finding that its negligence was a proximate cause of the accident, and in apportioning...