OPINION
Before RABINOWITZ, C. J., and CONNOR, ERWIN, BOOCHEVER and BURKE, JJ.
BURKE, Justice.
This matter is before us on a petition for review. The subject of the petition is an order granting summary judgment, on the issue of liability, in an action for damages in the superior court.
On February 3, 1974, an automobile accident occurred at the intersection of Chena Hot Springs Road and the Steese Highway, near Fairbanks, Alaska. Two vehicles were involved in the accident. One, a G.M.C. pickup truck, was driven by respondent Eugene F. Bottcher. The other, a 1971 Volkswagen, was driven by petitioner Laurie J. Clabaugh.
At the time of the accident respondent was stopped at a stop sign on Chena Hot Springs Road. Petitioner, traveling in the same direction, collided with respondent when she was unable to bring her own vehicle to a stop as she approached him from the rear.
Alleging negligence on the part of petitioner, respondent filed an action in the superior court complaining of personal injuries and damage to his vehicle. Petitioner answered the complaint, denying that she was negligent. With her answer she filed a written demand for trial by jury. Thereafter respondent filed a motion for summary judgment on the issue of liability.1
In support of his motion respondent argued that subsequent to the accident petitioner had been cited for a violation of the state’s basic speed law.2 that she had entered a plea of guilty to such charge, and that, from these facts, he was entitled to judgment as a matter of law on the issue of liability. The sole evidentiary support filed with his motion was a certified copy of a Uniform Traffic Ticket and Complaint alleging a violation of Alaska’s basic speed law by petitioner. On the reverse side of that document, under the heading of “Court Action and other Orders”, appeared the following:
2-19-74. Fine in the amount of $10.00 received as required by court schedule.
In response petitioner filed a memorandum in opposition to the motion for summary judgment together with a statement of genuine issues and an affidavit describing the events leading up to the accident. At the same time petitioner filed a motion for leave to make the State of Alaska a third party defendant. By her third party complaint petitioner sought contribution from the State of Alaska, as a joint tort-feasor, under the Alaska Uniform Contribution Among Tortfeasors Act,3 alleging [174]*174that the accident was caused by improper design and maintenance of Chena Hot Springs Road.
The affidavit filed by petitioner contained the following language:
LAURIE J. CLABAUGH, being first duly sworn under oath, deposes and says:
1. That I am the Defendant in this action.
2. That on February 3, 1974, I was driving a vehicle owned by Delbert Jensen toward Fairbanks on Chena Hot Springs Road.
3. That this was the first occasion I had to travel Chena Hot Springs Road in the direction of Fairbanks either as a passenger or as a driver.
4. That the last speed limit sign prior to the accident, which was located approximately ¾ of a mile from the accident scene, indicated a limit of 40 miles per hour.
5. That immediately before the scene of the accident, I came over the crest of a hill and began to travel a downgrade, which continued to the point of impact.
6. At approximately half-way down the downgrade at a point three hundred feet from the accident, there was posted a “Stop Ahead” sign. This was my first warning that I was approaching an intersection.
7. That as I looked ahead to the intersection, I could see a vehicle stopped on Chena Hot Springs Road waiting to enter the Steese Highway.
8. That I slowed and braked the vehicle which I was driving and made every reasonable effort to bring the vehicle to a stop behind the vehicle of the plaintiff Eugene F. Bottcher.
9. That the roadway was extremely slippery and because of this slippery condition and the downward incline of the roadway, my deceleration and braking had virtually no affect upon the vehicle which I was driving, rendering me unable to stop.
10. That rather than to contest the citation for violation of the basic speed law which was issued to me, acting without the advice of counsel, my friend Delbert Jensen paid a $10.00 fine to dispose of the ticket.
11. That I believe the reason why I was unable to stop was the improper design of the roadway, the failure to warn me to reduce speed below 40 miles per hour, the insufficient warning of the approach to the intersection and the extremely slippery condition of the roadway.
12. That I have moved to bring the State of Alaska into this action as a third party defendant.
Dated this 25th day of February, 1975. s/ LAURIE J. CLABAUGH
On March 13, 1975, the superior court announced its decision to grant respondent’s motion for summary judgment. At the same time the court granted petitioner’s motion for leave to file her third party complaint against the State of Alaska. Formal orders disposing of both motions were signed on March 18, 1975, and filed on March 20, 1975. Petitioner thereupon sought review.
In granting summary judgment the superior court did not rely upon petitioner’s alleged plea of guilty to a violation of the basic speed law.4 Instead, the court looked to the information supplied by petitioner’s affidavit, holding that her own account of the accident showed that there were no genuine issues of material fact concerning petitioner's negligence and that, therefore, respondent was entitled to judgment as a matter of law.
[175]*175The standard to be applied by the trial court in ruling on motions for summary judgment is found in Rule 56(c), Alaska Rules of Civil Procedure. The rule provides, in part:
Judgment shall be rendered forthwith if the pleadings, depositions and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.5
Respondent contends, and the trial court held, that petitioner’s affidavit shows that she inexcusably violated the basic speed law and, therefore, under our decision in Ferrell v. Baxter, 484 P.2d 250 (Alaska 1971), her violation constituted negligence per se, entitling him to judgment on the issue of liability as a matter of law. Petitioner argues that under our later holding in Breitkreutz v. Baker, 514 P.2d 17 (Alaska 1973), she was entitled to have that question determined in a jury trial.
In Ferrell
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION
Before RABINOWITZ, C. J., and CONNOR, ERWIN, BOOCHEVER and BURKE, JJ.
BURKE, Justice.
This matter is before us on a petition for review. The subject of the petition is an order granting summary judgment, on the issue of liability, in an action for damages in the superior court.
On February 3, 1974, an automobile accident occurred at the intersection of Chena Hot Springs Road and the Steese Highway, near Fairbanks, Alaska. Two vehicles were involved in the accident. One, a G.M.C. pickup truck, was driven by respondent Eugene F. Bottcher. The other, a 1971 Volkswagen, was driven by petitioner Laurie J. Clabaugh.
At the time of the accident respondent was stopped at a stop sign on Chena Hot Springs Road. Petitioner, traveling in the same direction, collided with respondent when she was unable to bring her own vehicle to a stop as she approached him from the rear.
Alleging negligence on the part of petitioner, respondent filed an action in the superior court complaining of personal injuries and damage to his vehicle. Petitioner answered the complaint, denying that she was negligent. With her answer she filed a written demand for trial by jury. Thereafter respondent filed a motion for summary judgment on the issue of liability.1
In support of his motion respondent argued that subsequent to the accident petitioner had been cited for a violation of the state’s basic speed law.2 that she had entered a plea of guilty to such charge, and that, from these facts, he was entitled to judgment as a matter of law on the issue of liability. The sole evidentiary support filed with his motion was a certified copy of a Uniform Traffic Ticket and Complaint alleging a violation of Alaska’s basic speed law by petitioner. On the reverse side of that document, under the heading of “Court Action and other Orders”, appeared the following:
2-19-74. Fine in the amount of $10.00 received as required by court schedule.
In response petitioner filed a memorandum in opposition to the motion for summary judgment together with a statement of genuine issues and an affidavit describing the events leading up to the accident. At the same time petitioner filed a motion for leave to make the State of Alaska a third party defendant. By her third party complaint petitioner sought contribution from the State of Alaska, as a joint tort-feasor, under the Alaska Uniform Contribution Among Tortfeasors Act,3 alleging [174]*174that the accident was caused by improper design and maintenance of Chena Hot Springs Road.
The affidavit filed by petitioner contained the following language:
LAURIE J. CLABAUGH, being first duly sworn under oath, deposes and says:
1. That I am the Defendant in this action.
2. That on February 3, 1974, I was driving a vehicle owned by Delbert Jensen toward Fairbanks on Chena Hot Springs Road.
3. That this was the first occasion I had to travel Chena Hot Springs Road in the direction of Fairbanks either as a passenger or as a driver.
4. That the last speed limit sign prior to the accident, which was located approximately ¾ of a mile from the accident scene, indicated a limit of 40 miles per hour.
5. That immediately before the scene of the accident, I came over the crest of a hill and began to travel a downgrade, which continued to the point of impact.
6. At approximately half-way down the downgrade at a point three hundred feet from the accident, there was posted a “Stop Ahead” sign. This was my first warning that I was approaching an intersection.
7. That as I looked ahead to the intersection, I could see a vehicle stopped on Chena Hot Springs Road waiting to enter the Steese Highway.
8. That I slowed and braked the vehicle which I was driving and made every reasonable effort to bring the vehicle to a stop behind the vehicle of the plaintiff Eugene F. Bottcher.
9. That the roadway was extremely slippery and because of this slippery condition and the downward incline of the roadway, my deceleration and braking had virtually no affect upon the vehicle which I was driving, rendering me unable to stop.
10. That rather than to contest the citation for violation of the basic speed law which was issued to me, acting without the advice of counsel, my friend Delbert Jensen paid a $10.00 fine to dispose of the ticket.
11. That I believe the reason why I was unable to stop was the improper design of the roadway, the failure to warn me to reduce speed below 40 miles per hour, the insufficient warning of the approach to the intersection and the extremely slippery condition of the roadway.
12. That I have moved to bring the State of Alaska into this action as a third party defendant.
Dated this 25th day of February, 1975. s/ LAURIE J. CLABAUGH
On March 13, 1975, the superior court announced its decision to grant respondent’s motion for summary judgment. At the same time the court granted petitioner’s motion for leave to file her third party complaint against the State of Alaska. Formal orders disposing of both motions were signed on March 18, 1975, and filed on March 20, 1975. Petitioner thereupon sought review.
In granting summary judgment the superior court did not rely upon petitioner’s alleged plea of guilty to a violation of the basic speed law.4 Instead, the court looked to the information supplied by petitioner’s affidavit, holding that her own account of the accident showed that there were no genuine issues of material fact concerning petitioner's negligence and that, therefore, respondent was entitled to judgment as a matter of law.
[175]*175The standard to be applied by the trial court in ruling on motions for summary judgment is found in Rule 56(c), Alaska Rules of Civil Procedure. The rule provides, in part:
Judgment shall be rendered forthwith if the pleadings, depositions and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.5
Respondent contends, and the trial court held, that petitioner’s affidavit shows that she inexcusably violated the basic speed law and, therefore, under our decision in Ferrell v. Baxter, 484 P.2d 250 (Alaska 1971), her violation constituted negligence per se, entitling him to judgment on the issue of liability as a matter of law. Petitioner argues that under our later holding in Breitkreutz v. Baker, 514 P.2d 17 (Alaska 1973), she was entitled to have that question determined in a jury trial.
In Ferrell we adopted the rules set forth in Restatement (Second) of Torts §§ 286, 288A and 288B (1965),6 and upheld the trial court’s adoption of a regulation such as. 13 AAC 02.275 as a standard of reasonable behavior displacing common law negligence.7 We also approved a negligence per se instruction in that case. In Breitkreutz we modified the expansive application of negligence per se set out in. Ferrell. In that case, an earlier version of 13 AAC 02.275 was the applicable regulation. We held that the language of the regulation was so general, imposing nothing more than a duty to be reasonable and prudent, that negligence per se was not appro[176]*176priate, and the standards of ordinary negligence applied. We found persuasive the Ohio Supreme Court’s analysis:
In other words, if a positive and definite standard of care has been established by legislative enactment whereby a jury may determine whether there has been a violation thereof by finding a single issue of fact, a violation is negligence per se; but where the jury must determine the negligence or lack of negligence of a party charged with the violation of a rule of conduct fixed by legislative enactment from a consideration and evaluation of multiple facts and circumstances by the process of applying, as the standard of care, the conduct of a reasonably prudent person, negligence per se is not involved.8
Here, as in Breitkreutz, negligence per se is not called for. That, however, does not end our inquiry, since under the principles of ordinary negligence, it appears that summary judgment was correctly granted. Petitioner’s own affidavit establishes that she failed to exercise due care, as a matter of law.
It is clear that petitioner failed to control her speed so as to avoid colliding with plaintiff’s vehicle. Her only explanations for the accident are the slippery condition of the road, and her personal belief that she was unable to stop because of improper highway design or lack of warning sufficient to enable her to reduce her speed as she approached the intersection.9
Petitioner admits that she was travelling Chena Hot Springs Road for the first time. Such being the case, we believe that any person in her position should have expected the unexpected. We further believe that all of the hazards she encountered were clearly foreseeable. It was early February, and any driver exercising the privilege of operating a motor vehicle on the highways of interior Alaska at that time of year must be expected to anticipate the presence of ice on the roadway and the possibility of slippery road conditions that will make it difficult to stop. Equally to be expected are downgrades where the added force of gravity will necessarily make braking more difficult, and intersections where other vehicles may be stopped or turning. Under the circumstances, and in view of the potential hazards existing at the time, petitioner was under a duty to reduce her speed as she approached the crest of the hill. Given the distance from there to the intersection, the presence of a warning sign 300 feet back from the point of impact, and the apparent lack of any obstructions to visibility, there should have been more than ample time for her to come to a stop, had she been operating her vehicle in a reasonably prudent manner.
In Breitkreutz, we held that the defendant was entitled to have his case go to the jury, since the conditions there — darkness, an icy roadway, the defendant’s slow rate of speed, and a situation of sudden peril— presented a genuine issue of fact as to whether he had been negligent. Petitioner here fails to present any such evidence.
The judgment of the superior court is affirmed and the matter remanded for trial on the issue of damages.
Affirmed and remanded.