Walden v. State

• Decision Date: 31 October 1991
• Docket Number: No. 90-322,90-322
• Citation: 818 P.2d 1190,48 St.Rep. 893,250 Mont. 132
• Parties: Dirk WALDEN, Plaintiff and Appellant, v. The STATE of Montana, and The Montana State Highway Department, Defendants and Respondents.
• Court: Montana Supreme Court

Page 1190

818 P.2d 1190

250 Mont. 132

Dirk WALDEN, Plaintiff and Appellant, v. The STATE of Montana, and The Montana State Highway Department, Defendants and Respondents.

No. 90-322.

Supreme Court of Montana.

Submitted on Briefs May 10, 1991.

Decided Oct. 2, 1991.

Rehearing Denied Oct. 31, 1991.

Patrick F. Flaherty, Flaherty & Winner, and Dennis Patrick Conner, Great Falls, for plaintiff and appellant.

Marc Racicot, Atty. Gen., Norman C. Peterson, and Lynn M. Grant, Asst. Attys. Gen., Helena, and Max Davis, Cure, Borer & Davis, Great Falls, for defendants and respondents.

GRAY, Justice.

The appellant, Dirk Walden, appeals from the final judgment entered by the Eighth Judicial District Court, Cascade County. The jury found, by special verdict, that the respondent's negligence was not a legal cause of the appellant's injuries. The appellant requests a new trial. We affirm.

The appellant raises the following issues on appeal:

1. Whether the District Court improperly instructed the jury on the State's duty to maintain its highways.

2. Whether the District Court erred in giving Jury Instruction No. 39 regarding practicability and cost of highway repair.

3. Whether the District Court erred in refusing the appellant's challenge for cause of a prospective juror.

4. Whether the appellant was denied a fair trial as a result of the District Court's rulings on the evidence concerning the appellant's failure to wear a helmet.

5. Whether the District Court erred in allowing certain testimony of the State's witness concerning bicycle helmets.

On July 20, 1987, Walden suffered a serious head injury as a result of a bicycle accident. The accident occurred on the northbound entrance ramp to U.S. Interstate 15 near Great Falls.

Interstate 15 is a divided highway running north and south through Great Falls. The portion of the highway on which the accident occurred is located south of Great Falls on Gore Hill. Near the top of the hill The interstate was constructed in 1967. The entrance ramps, exit ramps and shoulders are made of asphalt; the travel lanes consist of concrete slabs fifteen feet long, eight inches deep and one lane wide. Where the non-bonding asphalt and concrete meet, a longitudinal "seam" exists.

there is an overpass with an exit ramp allowing southbound traffic to exit the interstate and an entrance ramp allowing northbound traffic to enter the interstate. The entrance ramp descends down Gore Hill a distance of approximately 2,150 feet at a five percent grade before it merges with the northbound travel lanes of the interstate.

The concrete is originally poured in one piece. After the concrete sets, "contraction" cuts three inches deep are made across the width of the lanes every fifteen feet. The cuts serve to control the cracking of the concrete. When the concrete expands and contracts with temperature change, it cracks along the weakened cuts, as intended, forming the individual slabs.

The highway, therefore, is no longer a single structure, and each slab can move independently of the adjoining slab. Heavy truck traffic and natural forces such as heat, cold and moisture create "slab faulting." Slab faulting is the difference in concrete slab elevation that is formed by the shifting of the individual slabs in relation to one another. The movement of the slabs compresses the subgrade material underneath and causes the formation of air pockets. Water eventually fills these pockets and when a heavy vehicle drives over the slab it exerts inordinate pressure on this water, forcing it to escape. Following the path of least resistance, the water is forced with tremendous energy out of both the contraction cracks between the slabs and the longitudinal seam between the concrete and the asphalt shoulder. In addition to the slab faulting, heavy traffic actually compacts the asphalt on the ramps and shoulders.

The result is that the transitional seam between the asphalt and the concrete spreads apart slightly, and at various points the concrete edge will be higher than the asphalt. This was the condition of the seam between the asphalt entrance ramp and the concrete travel lane where Walden had his accident.

On the day of the accident two friends, John Huotte and Andrew Flaherty, were bike riding near Walden's home in Great Falls and stopped for a visit. Walden decided to join Huotte and Flaherty on the bike ride. The three men biked to Tenth Avenue South and then decided to proceed up Gore Hill. They biked single file on the asphalt shoulder of Interstate 15 and up the southbound exit ramp to the top of Gore Hill. After resting at the top of the exit ramp, they crossed the overpass and proceeded down the northbound entrance ramp.

Walden was wearing specially designed cycling shoes that he had strapped on to his pedals before starting down the ramp. Huotte was in the lead, followed by Walden and then Flaherty. Testimony at the trial indicated that Walden and Flaherty were "drafting." Drafting is a technique used by cyclists whereby a cyclist tries to ride in the vacuum created behind the cyclist in front of him or her, in order to generate a greater speed with less resistance.

Huotte and Flaherty agreed that the speed of the three bikes as they neared the bottom of the hill was about thirty miles per hour. Huotte also testified that he could hear Walden pedaling behind him as they approached the end of the entrance ramp.

Walden and Flaherty were travelling slightly faster than Huotte and moved out to Huotte's left in order to pass him. At the same time, Huotte began to move to his left so that he could get farther away from the guard rail and the debris lying on the shoulder to his right.

The three bikes were virtually side by side as they came to the end of the entrance ramp and Walden and Flaherty were forced to cross the transitional seam between the asphalt shoulder and the concrete travel lane. Flaherty successfully maneuvered his bike over the seam. Walden's tires slipped into the seam causing him to lose control of his bike. Walden The first issue on appeal is whether the District Court improperly instructed the jury on the State's duty to maintain its highways. Walden contends that the District Court erred in refusing to instruct the jury on his theory of the case. It is the appellant's theory that the State has a duty to maintain its highways so that they are reasonably safe for bicyclists. To support this theory, the appellant offered Plaintiff's Proposed Jury Instruction Nos. 21 and 51. The District Court refused these instructions and instead gave Instruction No. 30 which was patterned after this Court's holding in Buck v. State (1986), 222 Mont. 423, 723 P.2d 210. Instruction No. 30 was identical to Plaintiff's Proposed Instruction No. 21 except that it omitted the specific reference to bicyclists and made general reference to "persons and vehicles." Plaintiff's Proposed Instruction No. 21 read in part:

fell, striking his head; he slid down the highway with his bike for about 70 feet and was still strapped into his pedals when he came to a stop.

Although the State is not an insurer of one who uses the highways, it is under a duty to keep its highways in a reasonably safe condition for ordinary use thereof, including use by bicyclists. The State's duty extends to the paved portion of the roadway, and to the shoulders and the adjacent parts thereof.

It is the further duty of the State to construct and maintain its highways so that no latent nor hidden defect or trap thereon constitutes an unreasonable danger to persons and vehicles, including bicyclists.

Instruction No. 30 omitted the emphasized portions.

All the given instructions must be read as a whole in determining whether the giving of certain jury instructions constitutes reversible error. If the given instructions, when viewed in their entirety, state the correct law applicable to the case, there is no reversible error. Jacobsen v. State (1989), 236 Mont. 91, 769 P.2d 694.

The appellant contends that the jury was left to speculate about whether the State has a duty to maintain its highways, where bicycle travel is permitted, in a reasonably safe condition for bicyclists. The appellant insists that the State has such a duty and must make certain the interstate is reasonably safe for bicycles, not just "normal" vehicles.

The question for this Court is whether the instructions given to the jury correctly stated the applicable law. The instructions provided:

You are instructed that Interstate 15 North and South Great Falls was at all times a public highway. [Instruction No. 10.]

You are instructed that under Montana law a bicycle is defined as a vehicle and that Dirk Walden had the right to be riding his bicycle on Interstate 15 at the time of his accident.

While the State of Montana Department of Highways may by rule prohibit bicycles from being used on interstates or public highways, the State adopted no such rule prohibiting bicycle use on Interstate 15. [Instruction No. 11.]

You are instructed that a person operating a bicycle shall be granted all of the rights and shall be subject to all of the duties applicable to the driver of any other vehicle. [Instruction No. 12.]

When these instructions are read with Instruction No. 30, no room for speculation exists as to whether the duty to maintain the highways extends to bicyclists. The State's duty is as stated in Instruction No. 30, to maintain its highways "in a reasonably safe condition for ordinary use thereof." This duty extends to bicyclists if they are permitted on a specified highway. The jury was properly instructed on this rule of law. Whether or not the State breached this duty and whether or not any such breach was the cause of Walden's injuries were questions for the jury to decide.

The State's duties with regard to the design, construction, and maintenance of Montana's highways apply equally to all permitted users, regardless of the user's...