State v. Kaatz, 3080

• Court: Supreme Court of Alaska (US)
• Writing for the Court: Before BOOCHEVER, C. J., RABINOWITZ, CONNOR, and BURKE, JJ., and DIMOND; CONNOR
• Citation: 572 P.2d 775
• Parties: STATE of Alaska, Appellant, v. Jeanne KAATZ, Administratrix of the Estate of Donald E. Kaatz, Deceased, Appellee.
• Docket Number: No. 3080,3080
• Decision Date: 09 December 1977

Page 775

572 P.2d 775 STATE of Alaska, Appellant,
v.
Jeanne KAATZ, Administratrix of the Estate of Donald E.
Kaatz, Deceased, Appellee. No. 3080. Supreme Court of Alaska. Dec. 9, 1977.

Page 777

Sanford M. Gibbs, Hagans, Smith, Brown, Erwin & Gibbs, Anchorage, for appellant.

W. G. Ruddy and M. T. Thomas, Robertson, Monagle, Eastaugh & Bradley, Juneau, for appellee.

Before BOOCHEVER, C. J., RABINOWITZ, CONNOR, and BURKE, JJ., and DIMOND, J. Pro Tem.

OPINION

CONNOR, Justice.

This wrongful death action is before us for the second time. On the first appeal, we announced our adoption of the doctrine of comparative negligence as the law of this state, and remanded so the superior court could apply that doctrine to the facts of this case. Kaatz v. State, 540 P.2d 1037 (Alaska 1975). While we conclude on this appeal that the trial court's application of the comparative negligence doctrine was correct, we must remand again because the superior court did not conduct a new trial on the issue of damages as directed in our prior mandate.

The facts of this case are set forth at length in our prior opinion, 540 P.2d at 1040-46. Briefly, Donald Kaatz, a construction worker, was killed on December 9, 1970, when a piece of earth-moving equipment on which he was riding overturned on the Mitkof Highway near Petersburg in Southeast Alaska. Kaatz' widow and administratrix sued the State of Alaska, alleging that the death was caused by the negligent failure of state employees to sand the

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icy highway. The state alleged that Kaatz' own negligence contributed to his death, because he knew the hazardous condition of the highway and the extremely unstable operating characteristics of the machine on which he was riding. ¹

At the initial trial the court, sitting without a jury, fixed the damages to Kaatz' survivors at $719,000, but held their recovery was entirely barred by the rule of contributory negligence. On appeal, we held that contributory negligence would no longer be a total bar to recovery, but that under the rule of comparative negligence the recovery would be reduced in the proportion that the negligence of the plaintiff (or, here, the plaintiff's decedent) contributed to the injury. We remanded the case so that the trial court might apportion the negligence between Kaatz and the state, and reduce the recovery accordingly.

We remanded for another purpose as well. The final paragraphs of our prior opinion read:

"We observe that in the present case defense counsel offered no evidence with regard to the issue of damages. This may have occurred because of a belief by defense counsel that under the contributory negligence doctrine plaintiffs' claims should have been barred entirely. Since we have abandoned the contributory negligence doctrine today, we feel that it is appropriate to require a new trial on the issue of damages.

"We remand this case to the superior court for further proceedings consistent with this opinion." 540 P.2d at 1050-51.

After our mandate, the state, relying on the repeal of AS 09.50.290, ² filed a demand for trial by jury on the damages issue. Kaatz moved for apportionment of negligence between the parties, after briefing, the motion came on for hearing on July 23, 1976. The court denied a jury trial, took no new evidence on damages, and amended its findings of fact and conclusions of law to reflect that, for unstated reasons, it apportioned fifteen percent of the negligence to Kaatz and eighty-five percent to the state. It reaffirmed its prior finding that $719,000 was the proper amount of damages, and entered judgment in favor of Kaatz for eighty-five percent of $719,000, or $611,150. The state appealed.

The state's contentions on appeal are:

1. The trial court violated this court's mandate, which ordered a new trial at which the state could produce evidence on the damages issue which it had not produced before;

2. The state was entitled to trial by jury on the damages issue;

3. Although comparative negligence has been adopted in Alaska, State v. I'Anson, 529 P.2d 188 (Alaska 1974), holds that the state has no duty to keep its highways safe for negligent highway users;

4. The trial court's findings of fact are inadequate for appellate review;

5. The fifteen to eighty-five percent apportionment is contrary to the evidence and clearly erroneous; and

6. The percentage apportionment should have been made by a jury.

I

The first issue requires reversal and remand. Our prior mandate directed the superior court to hold a new trial on the issue of damages, and receive new evidence on that issue. The superior court did not do so, although counsel for the state demanded a trial by jury and orally reminded the court of our instructions.

"( U)pon remand of a case by this court it becomes the duty of the lower court to obey the mandate and render judgment

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in conformity." State v. Salinas, 362 P.2d 298, 301 (Alaska 1961) (footnote omitted). We once again vacate the judgment based on the superior court's finding that the amount of damages was $719,000, and remand for a new trial at which both parties may introduce evidence on the proper sum of damages.

Although our decision on this issue is dispositive of the appeal, we will in this opinion address several of the other issues in the interest of judicial economy, since they will probably arise again in the superior court on remand.

II

AS 09.50.290 provided that tort claims against the state were to be tried by the court without a jury. It was repealed by section 1 of chapter 147, SLA 1975, which became effectively immediately upon signature by the governor, June 15, 1975. The first trial of this case took place in 1973, when AS 09.50.290 was in effect, so jury trial was not requested and trial was to the court.

On September 29, 1975, the day this court issued its mandate on the prior appeal, the state filed a written demand that the retrial on damages be by jury. Kaatz filed no papers mentioning the jury issue. At the July 23, 1976, hearing, Judge Carlson denied a trial by jury. (As discussed in section I, supra, he did not conduct a trial at all.)

We must decide whether the repeal should be given limited retroactivity to this claim which arose and was filed long before the repeal, and was sub judice on appeal when the repeal took effect. Legislative history sheds no light on the question. The bill passed both chambers unanimously and without amendment. No substantive committee reports appear in the journals.

Statutes are presumed to operate prospectively only. AS 01.10.090. This does not answer the question, however, because the statute can be interpreted to mean either that jury trial was available only for claims arising or filed after its effective date, or that trials commencing after the statute took effect could be by jury.

A combination of several factors persuades us that the retrial of this case shall be by jury. The legislature gave the repeal immediate effect, waiving by two-thirds vote the normal rule that statutes take effect ninety days after enactment. Alaska Const. art. II, § 18. Kaatz cannot claim a vested right in having trial only to the court. Bidwell v. Scheele, 355 P.2d 584, 586-87 (Alaska 1960). Cf. AS 01.10.100(a) (repeal of a statute cannot extinguish a vested right). In civil cases generally, the parties have a right to jury trial. ³ AS 09.50.290 was a limited exception to that general rule. See generally 2A Sutherland, Statutory Construction, § 47.11 (4th ed. Sands 1973). Had we given the doctrine of comparative negligence itself the same prospective-only effect which Kaatz asks as to this statutory change, she would not have had the benefit of that doctrine, and the initial judgment against her in this case would have been affirmed. Therefore, we hold that on remand, the state's demand for jury trial on the issue of damages pursuant to Civil Rules 38 and 39 should be granted.

III

The previous appeal settled that both the state and Kaatz were negligent. 540 P.2d at 1042-43, 1045-46. Conceding that it has been found negligent, the state argues on this appeal that it should not be held liable because it owed no duty to negligent highway users such as Kaatz. ⁴

Page 780

The state bases this argument on I'Anson, supra at 195. In I'Anson, we rejected the state's argument that it should be held to a lesser standard of care than private individuals. We then said:

"Thus, the appropriate standard of care required of (the state) and its agents was to use reasonable care to keep the highway in a safe condition for the reasonably prudent traveler."

(Emphasis added.) A footnote at that point quoted Martin v. State, Dep't of Highways, 175 So.2d 441, 443 (La.App.1965), cert. denied, 248 La. 359, 178 So.2d 653 (1965):

" 'Generally, it is the duty of the highway department to construct and maintain the highways . . . reasonably safe for a traveler himself exercising ordinary care; a highway will be deemed safe within these requirements if it may be negotiated successfully by all but the very reckless and careless drivers, there being no obligation to construct and maintain highways so as to insure the safety of such drivers.' "

529 P.2d at 195 n. 31.

The state now asserts, that before Kaatz I, its duty to negligent persons was merely an academic issue since a plaintiff who was negligent was barred from recovery for that reason alone. After Kaatz I, the state says, the plaintiff's negligence without more eliminates the state's duty to that plaintiff.

We rejected this argument in State v. Guinn, 555 P.2d 530, 537-38 (Alaska 1976). There we affirmed a judgment against the state based on negligent highway maintenance even though we held as a matter of law that the plaintiffs' decedent had been contributorily negligent. Id. at 541. ⁵

In I'Anson, we held that the state must be treated like any other litigant for these purposes. 529 P.2d at 195. The advent of comparative negligence offers no occasion to abandon...