Cech v. State

598 P.2d 584, 183 Mont. 75, 1979 Mont. LEXIS 842

• Court: Montana Supreme Court
• Decided: August 1, 1979
• Docket: No 14216
• Status: Published

Opinions

MR. JUSTICE HARRISON

delivered the opinion of the Court.

Plaintiff Richard Cech, as personal representative of the estates of his wife, Arlene Cech and his child, Kelly Cech, and as guardian of the estates of his children Bruce and Kerry Cech, sued the State of Montana under provisions of the Montana Tort Claims Act, for damages resulting from an automobile accident on Interstate 90, approximately eleven miles east of Whitehall, Montana. The jury trial began November 14, 1977, in the District Court of the Sixth Judicial District, Park County. The jury returned four separate verdicts for plaintiff as follows:

For the estate of Arlene Cech.....................$ 15,000 (deceased)

For the estate of Kelly Cech......................$35,000 (deceased)

For the estate of Bruce Cech......................$25,000 (minor child)

For the estate of Kerry Cech.....................•. $25,000 (minor child)

The State raises the following issues for our review:

1. Whether the District Court erred by denying the State’s motions for directed verdict made at the close of plaintiff’s case-in-chief and at the close of all the evidence?

2. Whether the District Court erred in admitting evidence of subsequent remedial measures?

3. Whether there is substantial evidence to support the jury verdict in favor of plaintiff?

Since the State’s issues center on sufficiency of the evidence and the propriety of admitting certain evidence, a more complete statement of the facts appears as the issues are discussed. Suffice it to say now that the single-vehicle accident subject of this action occurred on the afternoon of November 29, 1974, on Interstate 90, on a portion of that road known as Cottonwood Hill.

Richard Cech was driving the family car, a 1967 Rambler, west on the freeway. His passengers were his wife, Arlene, and three of their seven children. The weather on the day of the accident was described by Cech as “sunshiny,” “cool,” “clear and “fairly nice.” He testified that the road was “fairly dry” and “in good shape” from Livingston, the town from which they were traveling, to Bozeman. From Bozeman westward the conditions were different; the left lane was snow-packed, but the right lane, in which he was driving, was “dry” according to Cech. He testified that near the hill on which the accident occurred both lanes had started to clear up and there was less snow on the road.

Cech further testified that he was driving around 55 miles an hour and had maintained that speed almost all the way even though it was winter and his car did not have snow tires. He stated that he did not recall seeing the roadside sign warning of ice on the next three miles of highway, within which space the accident occured. Going down the hill the car went into a side skid. The front of the car was pointing toward the center of the highway, but suddenly turned back and left the road.

Cech stated that he did not brake while on the highway or once the car had left the pavement. However, once the car left the road and was on the “field or pasture” as he described it (the State calls it the “recovery area”), he testified that he must have been braking because “the car was coming to a slower motion.” The car did not stop within this area, but went over the edge into a ravine. Cech’s wife was killed in the accident; the boy Kelly, died in a Great Falls hospital about a week later; and the other two boys and Cech himself sustained relatively minor injuries from which they recovered.

The State challenges the legal propriety of the verdicts and directs the Court’s attention to evidence supporting its defenses that the design and construction of that portion of the Interstate were proper* and in accordance with accepted standards, conforming to the state of the art at the time.

While three issues are set forth by the State, in view of the return of the case for retrial, we will discuss only the first two issues upon which our decision to reverse is based.

At the time of trial, after submission of plaintiff’s pretrial memorandum and his counsel’s statements of clarification made during trial the only issue was whether the State was negligent in not placing guardrails at the edge of the Interstate where the accident occurred after the initial construction and before the accident involving the Cech family. Plaintiff’s counsel stated, “This case is limited strictly to the subject of guardrails. And we aren’t contending there is any engineering defect other than that.” During cross-examination, plaintiff’s counsel made it clear that he was not alleging or contending that the State failed to warn of icy road conditions or that plaintiff’s visibility was in any way interfered with or obstructed at the time of the accident.

At the close of plaintiff’s case, the State made a motion for a directed verdict which reads in part:

“MR. POHLMAN: Comes now the Defendant, and pursuant to Rule 50 of the Montana Rules of Civil Procedure, moves for a directed verdict in favor of the Defendant, upon the-grounds and for the reasons that Plaintiff has not by a preponderance of the evidence proved a prime [sic] facie case, in that the Defendant negligently designed the highway in question in its initial design. And further, that the Defendant negligently failed to provide adequate guardrails at the scene in accordance with its initial design of guardrails. And further, that the Plaintiff has not proved a prime [sic] facie case that the Defendant negligently constructed the highway in question in accordance or not in accordance with the design as to the highway, including guardrail and other factors or elements of design and construction. Further, that we want to note to the Court that in Plaintiff’s Pre-Trial memorandum Plaintiff has abandoned and withdrawn all initial contentions that the Defendant negligently failed to give warning of hazards, and that Defendant negligently maintained the highway, and in the terms of the Plaintiff’s Pre-Trial memorandum, as maintenance pertaining to the usual procedure of sanding, et cetera. The Motion is based upon the record and the testimonial evidence and the exhibits in the Plaintiff’s case in chief. Further, that there has been no testimony or other evidence presented by Plaintiff whatsoever showing or proving that there was negligence in the design of the highway on behalf of the State of Montana. That there was no evidence whatsoever by expert testimony or otherwise that there was a duty or standard of care for the design of the highway as to alignment, slope, grade, guardrail placement, recovery area, signing or any other concepts of design. And further, that there was no evidence presented by Plaintiff that there was any such breach of the said duty or standard of care by the Defendant.

“Further, that there has been no testimony or other evidence presented by Plaintiff proving the Defendant was negligent in failing to provide guardrails subsequent to the original design and construction but prior to the Cech accident of 11-29-74. And further, that there has been no evidence of a duty or a standard of care for the provision and erection of guardrail subsequent to the initial design and construction, but prior to the Cech accident of 11-29-74, and no evidence presented of a breach of any such duty by the Defendant. And further, that there has been no evidence of a standard of care or duty on behalf of the Defendant with regard to accident frequency ratio analysis for this highway in question. And further, that there has been no evidence showing any breach of duty or standard of care for the compilation and reporting of accidents data for this interstate 90 highway.”

We note that this first specification of error is directed at the court’s failure to direct a verdict on the question of the State’s negligence to place a guardrail at the scene of the accident at the time the freeway was first designed and built. The motion did not go to the question of whether the State was negligent in failing to put a guardrail there later after there had been accidents in the area. With the uncontroverted expert testimony before it at that time, the court might well have directed a verdict on this very narrow issue. However, the court was not requested to direct a verdict for failing to put a guardrail in after the initial construction and design, so it was not in a position to direct or refuse to direct a verdict on this point. Therefore, we find no error.

The second issue, and the one we find necessitates the return of this case, was the admission of evidence of subsequent remedial measures taken by the State after the accident. The investigating officer of the Cech accident requested an emergency study of the area which went to the Spot Safety Unit of the Department of Highways. Approximately a month after the accident, after an investigation, a recommendation was made which resulted in the placement of a guardrail across the entrance of the recovery area. This construction was done subsequent to the Cech accident and was completed in 1975.

Over the State’s objection, the court allowed evidence of this “subsequent request for an emergency study” to be admitted into evidence. The objection was based on Rule 407, Mont.R.Evid.:

“When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.”

Plaintiff argues that the admission of other incidents is both relevant and material under the case law of Montana, citing Leonard v. City of Butte (1901), 25 Mont. 410, 65 P. 425, and Robinson v. F. W. Woolworth Co. (1927), 80 Mont. 431, 261 P. 253. We find neither case persuasive in view of the facts and law in this case.

In Leonard the question considered prior falls on a smooth sidewalk, some 100 reported falls in a year, 25 in the two months before plaintiff fell, all on a space of six feet square. The city had an ordinance requiring safe construction and reporting of any defects or accidents to the city. The case is an early Montana holding, and decided long before Rule 407, Mont.R.Evid., became effective. Also, there was a specific violation of a city ordinance involved. In addition, the case is not in point on whether an instruction, as given here, cured any prejudice.

The same objection can be made to Robinson, a slip and fall case in the Woolworth store. The objection raised was to the remoteness in time betweeen the various alleged falls, and this Court found that such a decision was within the sound discretion of the court. In addition, neither Robinson nor Leonard involved the issue now before us — construction done after an accident.

The State argues that it never took the position that installation of a guardrail was unfeasible; it never controverted any allegation of feasibility. Furthermore, there never was a question of ownership or control, and impeachment was not at issue. Therefore, contends the State, there was no ground on which the evidence was properly admitted.

The State claims that it was unduly prejudiced by the admission of the evidence relating to subsequent remedial measures and claims further that the jury was confused or misled in its deliberations, having been allowed to consider such evidence. Because of that, the evidence should not have been admitted, for although relevant, evidence may be excluded if its probative valué is substantially outweighed by the danger of prejudice, confusion of issues, or misleading the jury. Rule 403, Mont.R.Evid. The. State charges that the introduction of evidence regarding the subsequent installation of a guardrail was plaintiff’s attempt to show antecedent negligence on the part of the State, and was improper, citing Frankel v. Burke’s Excavating, Inc. (E.D.Pa.1967), 269 F.Supp. 1007, 1011.

Plaintiff argues that even if this admission was error, it was cured by the instructions given the jury which allegedly cured any prejudice to the State. We do not agree.

Here, plaintiff was successful in getting before the jury the idea that the State, by constructing the additional guardrail at the scene of the accident, after the accident, is evidence which amounts to antecedent negligence. We hold that the admission of this evidence necessitates a new trial. See Frankel v. Burke’s Excavating, Inc., supra.

The rule in such cases is that where there is ample evidence of the conditions at the scene of the accident at the time of the accident, evidence of subsequent repairs and improvements by a highway department is not admissible for showing the condition at the time of the accident. A discussion in a Fifth Circuit Court decision is enlightening on this point. In Louisville & Nashville Railroad Company v. Williams (5th Cir. 1966), 370 F.2d 839, 843-44, the court said:

“The rule is well settled that evidence of subsequent repairs or improvements by a defendant altering the scene of an accident may not be admitted in evidence to show negligence on the part of the defendant. There was ample evidence in the present case of the condition of the crossing at the time of the collision, and we do not think that the evidence of subsequent repairs and improvements was admissible under the theory employed in City of Montgomery v. Quinn, 1944, 246 Ala. 154, 19 So.2d 529, 531-533, that is, to show the condition existing at the time of the accident . . .

“. . . here the subsequent changes did tend to the inference that the crossing was unusually hazardous and that the railroad company was negligent in not providing warnings other than those required by statute. However, Brofessor Wigmore makes it clear that the controlling ground for excluding evidence of repairs or improvements made after an accident is the argument of policy and that, if the policy purpose is obviated, the theory of relevancy may not be a sufficient ground of objection:

“ ‘To be sure, it may be argued that, on the general theory of Relevancy (ante, §§ 31, 38), it would suffice for admissibility if merely the inference was a fairly possible one, — leaving it to the opponent to argue that it was the less probable one. Theoretically, it would be perhaps difficult to deny this. But in the present instance an argument of Policy has always been invoked to strengthen the case for exclusion. That argument is that the admission of such acts, even though theoretically not plainly improper, would be liable to over-emphasis by the jury, and that it would discourage all owners, even those who had genuinely been careful, from improving the place or thing that had caused the injury, because they would fear the evidential use of such acts to their disadvantage; and thus not only would careful owners refrain from improvements, but even careless ones, who might have deserved to have the evidence adduced against them, would be refraining from improvements subject innocent persons to the risk of the recurrence of the injury.

“ ‘Whatever then might be the strength of the objection to such evidence from the point of view of Relevancy alone, the added considerations of Policy suffice to make clear the impropriety of resorting to it.’ II Wigmore on Evidence, 3rd ed., § 283, pp. 151, 152.”

The court declined to find an abuse of discretion on the part of the trial judge, declaring that because the highway department which made the repairs was not made a party to the suit, the policy ground for excluding the evidence was not applicable. In the instant case, however, the party making the repairs is the party defendant, so the argument is easily made that the policy considerations are applicable.

Exceptions to the rule are articulated in the rule itself. Although evidence of subsequent remedial measures are generally not admissible because not probative of the issue of negligence, the evidence should be admitted if for another purpose. Here, however, there was no dispute as to the ownership of the site; no dispute as to under whose control it was; and no dispute as to the feasibility of the precautionary measure. The State maintains there was no question of impeachment, while plaintiff claims that the installation itself is impeachment of the State’s allegation that it was not negligent in providing a recovery area. The discussion of federal cases in this area appears to contravene plaintiff’s notion of “impeachment.” As an aid to understanding, see the discussion of cross-examination which resulted in allowing evidence of subsequent remedial measures to be admitted under the impeachment exception in Daggett v. Atchison, Topeka and Santa Fe Ry. Co. (1957), 48 Cal.2d 655, 313 P.2d 557, 563, 64 A.L.R.2d 1283.

The judgment is reversed and the case remanded for a new trial.

MR. CHIEF JUSTICE HASWELL concurs.