State v. I'Anson, 2032

CourtSupreme Court of Alaska (US)
Citation529 P.2d 188
Docket NumberNo. 2032,2032
PartiesSTATE of Alaska, Petitioner, v. Thomas I'ANSON and Maureen I'Anson, Respondents.
Decision Date29 November 1974

Charles P. Flynn and Theodore M. Pease, Jr., Burr, Pease & Kurtz, Inc., Anchorage, for petitioner.

Harland W. Davis, Anchorage, Joel E. Bradshaw and Russell W. Newman, Newman & Bradshaw, Inc. P.S., Seattle, Wash., for respondents.

Before RABINOWITZ, Chief Justice, and CONNOR, ERWIN, and FITZGERALD, Justices.

OPINION

RABINOWITZ, Chief Justice.

This petition for review arises out of a bifurcated superior court trial in which the issue of petitioner State of Alaska's liability was tried to the superior court with the assistance of an advisory jury. The central contention in this petition focuses on construction of the discretionary function or duty exception to Alaska's Tort Claims Act. 1

The automobile collision which led to the liability trial occurred in May 1970 at approximately Mile 63 of the Seward Highway near the entrance to the Granite Creek Campground. Between 7:30 and 8 p. m. on the day of the accident, John Ward was driving his car in a southerly direction on the Seward Highway. In the vicinity of the Granite Creek Campground he observed ahead an old Jeep pickup traveling from 15 to 20 miles per hour in a southerly direction. 2 According to Ward's testimony, he then blinked his lights and pulled out to pass the Jeep pickup; just as he was about to pass, the driver of the Jeep pickup pulled across the road in front of Ward whose vehicle then collided with the left rear portion of the Jeep.

Respondent Maureen I'Anson was a passenger in the Jeep pickup which was being driven by Andy DeBeau. DeBeau testified that just prior to the collision he was attempting a left turn into the entrance roadway of the Granite Creek Campground. DeBeau further testified that the Jeep did not have operative electric turn signals and that he did not give a left turn hand signal, but he had 'effectively' given a turn signal by pumping his brakes which in turn illuminated the Jeep's sole brake light which was located on the vehicle's left side. DeBeau admitted he observed Ward's vehicle approaching from the rear before he commenced the left turn.

As to the State of Alaska's liability for the collision and ensuing personal injuries sustained by respondent Maureen I'Anson, it was asserted that the state was negligent in failing to post a warning sign in advance of the entrance road to the Granite Creek Campground, and that the state should have placed no-passing striping between the crest of a slight rise north of the campground and the campground entrance roadway. The parties called expert witnesses who differed sharply over whether warning signs and no-passing zone striping should have been placed in the area immediately to the north of the entrance road to the Granite Creek Campground.

After hearing extensive testimony regarding the issue of liability, the advisory jury found in favor of petitioner State of Alaska. The trial judge in turn rejected the verdict of the advisory jury and entered findings of fact and conclusions of law resolving the issue of liability in respondents' favor. This petition followed.

Before treating the central question of whether highway signing and striping comes within the discretionary function or duty exception of AS 09.50.250, Alaska's Tort Claims Act, two minor issues will be dealt with.

Civil Rule 39(c) provides that:

In all actions not triable of right by a jury the court upon motion or of its own initiative may try an issue with an advisory jury or, with the consent of both parties, may order a trial with a jury whose verdict has the same effect as if trial by jury had been a matter of right. 3

It is established that the trial court has discretion whether or not to use an advisory jury. In the event one is used, it is entirely within the trial court's discretion to accept or reject, in whole or in part, the verdict of the advisory jury. 4 On appeal from a trial conducted with an advisory jury, review is limited to the findings of fact and conclusions of law of the trial court as if there had been no verdict from the advisory jury. 5 There can be no review of asserted errors relating to rulings before and instructions to an advisory jury. 6 In light of these established principles, we do not reach petitioner's contention that the superior court erred in refusing to instruct the advisory jury in accordance with its requested instruction regarding the 'dangerous condition doctrine.'

The second minor issue presented by this review proceeding involves two closely related assertions of error. In its original petition for preview, the State of Alaska claimed that the superior court not only improperly viewed the scene of the accident but erroneously conducted experiments at the accident site. In his memorandum decision, the trial judge wrote in part: 7

Certain facts evolved clearly from the testimony and were confirmed by a court view of the accident site and the approach to it from the north-the direction from which the vehicles involved in the accident were traveling. . . .

One observation by Thomas I'Anson in his testimony was confirmed by the court in taking a view of the scene. His statement was, substantially: 'You come over the hill and you are on it'. In approaching the scene at 50 miles per hour in a fairly heavy car equipped with good brakes, but without any special attempt to avoid an emergency situation, the court found that slowing from 50 miles an hour to a dead stop would be very difficult before reaching the campground entrance, in order to turn into it.

The subject of views by juries is governed by Civil Rule 48(c) which provides:

When the court deems proper, it may order a proper officer to conduct the jury in a body to view the property which is the subject of the litigation or the place where a material fact occurred and to show such property or place to it. While the jury is making its inspection no one shall speak to it on any subject connected with the trial. The court may order the person applying for a jury view to pay the expenses connected therewith.

Civil Rule 48(c) embodies the notion that 'The courts, like the prophet, have sensibly recognized that if a thing cannot be brought to the observer, the observer must go to the thing.' 8 According to Dean Wigmore, the trial judge, sitting without jury, has been traditionally empowered to 'proceed from the courtroom to the place in issue, whenever such a proceeding would be the suitable one for a jury, to take 'a view' in the narrower sense'. 9 Thus, there was abundant authority for taking a view of the situs of accident by the trial judge in the case at bar. However, we note that the record is devoid of any indication as to whether counsel for the respective parties were present during the taking of the view by the court. Further, a reading of the superior court's memorandum opinion indicates that the trial judge might have conducted an experment at the accident scene. Since the record before us is barren of any data surrounding the possibility that the trial judge did in fact conduct an impermissible experiment, this aspect of the case must necessarily be remanded in order to afford the parties an opportunity to develop the facts regarding both the alleged experiment by the court, and whether counsel were informed of and present during the court's carrying out of such experiment. 10 On remand, the trial court should not only insure that the record reflects the relevant facts pertaining to the alleged experiment but should also indicate what weight, if any, was accorded the experiment in deciding the liability issue.

We now turn to the central issue in this review proceeding, namely, whether the placement of traffic signs and highway striping comes within the ambit of the discretionary function or duty exception of the Alaska Tort Claims Act. 11 Counsel for petitioner view the question as one which was left unanswered by our opinion in State v. Abbott, 498 P.2d 712 (Alaska 1972). Respondents' counsel, on the other hand, view Abbott as controlling. To a large extent we are in agreement with respondents' position and begin with a review of the relevant portions of Abbott. 12 In Abbott, we noted that the critical language in Alaska's Tort Claims Act, which establishes the discretionary function or duty exception of the State of Alaska's waiver of immunity, is identical to that contained in the Federal Tort Claims Act. 13 Abbott then proceeded to review relevant federal case law on the subject of the discretionary function exception. Our discussion commenced with an analysis of Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). There the Supreme Court of the United States held that the federal government's decision to carry out a fertilizer export program without testing the explosiveness of the ammonium nitrate contained in the fertilizer was within the federal act's discretionary function exception. In so holding, Justice Reed, writing for the Court, first articulated the planning-operational test for resolution of scope of discretionary function exception questions. 14 In light of the 'almost unanimous' adverse reaction of legal commentators to Dalehite and the limitations placed on the decision by subsequent federal decisions, we concluded that Dalehite was 'now of questionable authority.' 15 Our evaluation of Dalehite was based in part upon analysis of Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955); Rayonier, Inc. v. United States, 352 U.S. 315, 77 S.Ct. 374, 1 L.Ed.2d 354 (1957), 16 and Eastern Air Lines, Inc. v. Union Trust Co., 95 U.S. App.D.C. 189, 221 F.2d 62, aff'd per curiam, 350 U.S. 907, 76 S.Ct. 192, 100 L.Ed. 796 (1955). We also noted that due to the widespread belief that the Dalehite majority carried the discretionary function exception too far, Justice Jackson's dissenting ...

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