State v. Abbott, s. 1463

CourtSupreme Court of Alaska (US)
Citation498 P.2d 712
Docket Number1467,Nos. 1463,s. 1463
PartiesSTATE of Alaska, Appellant, v. Susan H. ABBOTT, Guardian of Brenda Vogt, a minor, Appellee. Susan H. ABBOTT, Guardian of Brenda Vogt, a minor, Cross-Appellant, v. STATE of Alaska, Cross-Appellee.
Decision Date16 June 1972

Charles Hagans and Keith E. Brown, Sanford M. Gibbs, Asst. Atty. Gen., Anchorage, for State of Alaska.

William H. Fuld and Bernard P. Kelly, of Kay, Miller, Libbey, Kelly, Christie & Fuld, Anchorage, for Susan H. Abbott.



ERWIN, Justice.

On Sunday, January 22, 1967, Brenda Vogt, then 13 1/2 years old, was a passenger in the front seat of a 1967 Pontiac driven by her mother, Delores Vogt, in a southerly direction on the Seward Highway. While attempting to negotiate the curve near Girdwood at Mile 90.8 of the highway, one-half mile north of the Alyeska turnoff, Mrs. Vogt lost control of her vehicle which skidded across the center line and collided with an Army National Guard truck that was part of a convoy headed north towards Anchorage. Brenda Vogt was thrown into and partly through the windshield. She remained unconscious for a period of three weeks and suffered extensive permanent injuries, including severe brain damage.

Brenda Vogt, acting through her guardian, brought suit against the state under AS 09.50.250 alleging that the state had been negligent in its design, construction and maintenance of the road and in failing to post signs warning of the hazardous condition of the curve. Pursuant to AS 09.50.290 trial was had before a superior court judge sitting without a jury.

Although Brenda Vogt settled a separate negligence claim against her mother out of court prior to trial, considerable testimony was offered concerning Mrs. Vogt's operation of the vehicle to determine the cause of the accident. Estimates of her speed by various witnesses ranged from 30 to 50 miles per hour and a number of witnesses stated that the vehicle was moving too fast for the road conditions. The sharp curve in the road where the accident occurred was clearly visible because of the long straight stretch north of it and because the National Guard convoy was stretched out over a considerable distance, thereby tending to outline its shape. Mrs. Vogt had driven over the road a number of times and was generally familiar with it, but apparently had not made the trip in winter. As will appear below, however, Mrs. Vogt's negligence is not determinative of the state's liability to Brenda Vogt.

Regarding the condition of the highway, testimony was offered that the road was covered with ice and very slippery, but conflicting evidence was presented as to whether it had been adequately sanded. Several witnesses testified that the ice on the highway was rutted from the state's maintenance procedures and that the rutting

would cause a car to swerve at certain speeds. There was also testimony that the superelevation-the vertical distance between the inside and outside edges of the curve-undulated through the turn as a result of faulty maintenance. There had been a number of similar accidents at the same curve, and several state troopers testified that they had had trouble negotiating the curve. The state had been given notice of these problems

The state produced evidence that tended to show that it had followed its usual maintenance practices. Brenda Vogt, however, introduced into evidence the state's S.O.P.s (Standard Operating Procedures) for highway maintenance which require the Department of Highways to (1) maintain superelevations on curves, (2) eliminate ruts prior to freezeups, and (3) work overtime if necessary to keep sharp curves well sanded. Testimony was presented which tended to show that the state had not complied with these S.O.P.s.

At the conclusion of the trial the superior court judge filed an opinion setting out his findings of fact and conclusions of law as required by Civil Rule 52(a). The judge found that the curve was 'extremely slippery' and that, although the road had probably been sanded on the morning of the accident, 'there was very little, if any sand on the traveled portion of the highway immediately after the collision.' The judge stated:

I find specifically that under the conditions existing with a slick Highway and rutted ice that whatever sanding had been done was not adequate, and that the State of Alaska, through its employees, did not act as reasonable persons would have acted in properly sanding or salting or otherwise doing something with reference to this curve to make it reasonably safe for travel by the general public. In other words, I find that the State of Alaska, through its agents, was negligent at the time and place in question with reference to the maintenance of this particular curve.

The judge ruled that the state was not negligent in its design and construction of the curve, and that the failure to post adequate signs warning of the dangerous curve was not a proximate cause of the accident.

The judge found that the state had notice of the dangerous conditions at the curve and that its negligence, combined with the concurrent negligence of Mrs. Vogt, proximately caused Brenda Vogt's injuries.

I find that the State of Alaska, through its highway maintenance section, for a considerable time prior to the collision here concerned, had full knowledge of the dangerous condition of the particular curve involved. I find that under the circumstances existing, known to the State of Alaska, that the State of Alaska failed to use reasonable and ordinary care in correcting a known hazard and to properly maintain the Highway, for safe travel by the public, at the place involved in the collision here concerned.

Accordingly, I find that the State of Alaska was negligent ant that such negligence was a proximate cause of the collision which occurred between the Vogt vehicle and the Army National Guard truck. Furthermore, I find that the negligence of the State, as herein outlined, combined with negligence of Delorse (sic) Vogt, proximately caused the collision and the resulting injuries to the girl Brenda Vogt.

He concluded that the acts of the state were not within the discretionary function exception to the waiver of sovereign immunity contained in AS 09.50.250.

The court held that Brenda was damaged to the extent of $266,000. Since Brenda had previously settled out of court with Mrs. Vogt for $50,000, judgment against the state was entered for $216,000.

On appeal the state raises five basic arguments: (1) The determination of what constitutes proper winter maintenance of the state's highway system is a 'discretionary function' within the meaning of AS 09.50.250 for which the state is not liable. (2) To hold the state liable for

injuries resulting from the natural accumulation of ice and snow on the state's highways would impose an excessive burden on the state. (3) The trial judge's finding that the state's negligence was a proximate cause of the accident is clearly erroneous. (4) The trial judge's findings of fact regarding the condition of the traveled portion of the highway are clearly erroneous. (5) The lower court's memorandum opinion does not contain adequate findings of fact under Civil Rule 52(a) as to Delores Vogt's negligence. In addition, Brenda Vogt filed a cross-appeal challenging as inadequate the court's award of damages and attorney's fees

We have concluded that the lower court's decision should be affirmed in all respects except for the award of damages. We vacate that award and remand to enable the trial judge to make further findings of fact so as to comply with Civil Rule 52(a).


The state argues that the determination of what constitutes proper winter maintenance of the state's highway system is a 'discretionary function' of the state highway department within the meaning of AS 09.50.250 for which no action will lie. AS 09.50.250 provides in part:

A person or corporation having a claim against the state may bring an action against the state in the superior court. However, no action may be brought under this section if the claim (1) . . . (is) based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a state agency or an employee of the state, whether or not the discretion involved is abused.

Although there are no Alaska cases interpreting the discretionary function exception to the waiver of sovereign immunity, 1 the critical statutory language is identical to that contained in the Federal Tort Claims Act, 28 U.S.C.A. § 2680(a), and there exists an abundance of relevant 2 federal case law.

The doctrine of sovereign immunity, which sprang from the ancient maxim that the King can do no wrong, 3 has been strongly criticized in legal literature and variously described as a 'medieval doctrine', 4 'mistaken and unjust' 5 and 'an anachronism, without rational basis, (that) has existed only by the force of inertia.' 6 Although the Federal Tort Claims Act of 1946, which provides in part that '(t)he United States shall be liable (in tort) in the same manner and to the same extent as a private individual under like circumstances . . .,' 7 was heralded as a comprehensive waiver of governmental immunity, the exception for discretionary functions has been read so broadly on occasion, most notably in Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953), as to almost reinstate complete immunity. In Dalehite, which arose out of the Texas City disaster of

1947, the Supreme Court held that the federal government's decision to conduct a fertilizer export program without testing the explosiveness of the ammonium nitrate contained in the fertilizer was within the discretionary function exception. Although the court declined to specify where the discretion concept ended, it held that it included more than the mere initiation of programs

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