Hash v. State

807 P.2d 1363, 247 Mont. 497, 48 State Rptr. 277, 1991 Mont. LEXIS 68
CourtMontana Supreme Court
DecidedMarch 21, 1991
Docket90-251
StatusPublished
Cited by17 cases

This text of 807 P.2d 1363 (Hash v. State) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hash v. State, 807 P.2d 1363, 247 Mont. 497, 48 State Rptr. 277, 1991 Mont. LEXIS 68 (Mo. 1991).

Opinions

JUSTICE HARRISON

delivered the Opinion of the Court.

Plaintiffs, Charles L. Hash, personal representative of the estate of Michael M. Scott, and Debbie Jo Scott, appeal from a judgment entered against them and in favor of defendant, State of Montana, after a jury trial in the District Court of the Eleventh Judicial District, Flathead County, Montana. We affirm.

Plaintiffs raise the following issues:

1. Did the District Court err in denying plaintiffs’ motions for a directed verdict and for judgment notwithstanding the verdict?

2. Did the District Court err in giving two jury instructions to which plaintiffs objected?

On September 22, 1984, an early fall storm commenced in the vicinity of Marias Pass. By September 24, nine and one-half inches of snow had fallen. The snow that accumulated on U.S. Highway No. 2 was plowed by the Montana Highway Department maintenance crew. Plowing deposited a berm of snow on the edge of the roadway under the guardrail at milepost 194.4. The road at this point is curved and traverses uphill from west to east at approximately a four and one-half percent grade. The curve has an approximate three percent downhill slope from south to north. Narrow canyon walls shade the area until late in the morning and again late in the afternoon.

On Monday, October 1,1984, a United States Forest Service pickup driven by Johnny Flagget was eastbound on his way toward the top of Marias Pass. At approximately 8:55 a.m., when the Flagget vehicle entered the curve at milepost 194.4 it struck a patch of black ice, spun out of control, crossed the centerline and collided with a west bound automobile driven by Michael Scott. Mr. Scott was killed and his wife Debbie, a passenger in the vehicle, was seriously injured.

At the time of the accident, black ice covered both east and west bound lanes of the highway and extended for several hundred feet. The ice was immediately opposite and downhill from the snow berm which was four inches thick on the morning of the accident and located on the high side of the cmrve. The section of the highway where the curve is located was not patrolled by the maintenance crew that day nor was there any sand on the roadway or warning signs in the immediate vicinity of the accident. Investigators determined the ice formed when the snow berm melted during the day causing water to [500]*500run across the roadway which then froze when the temperature dropped in the evening.

On July 14, 1987, plaintiffs filed a complaint in the Eleventh Judicial District Court, Flathead County, seeking to recover damages against the State. The complaint alleged that the State was negligent in maintaining or monitoring the highway near the accident scene. Trial commenced on November 22, 1989. Plaintiffs’ motion for a directed verdict at the close of the State’s evidence was denied and the jury found for the State. Plaintiffs then moved the court, pursuant to Rule 50(b), M.R.Civ.P., for judgment notwithstanding the verdict, or in the alternative, a new trial. The District Court denied this motion. Plaintiffs now appeal.

I.

Did the District Court err in denying plaintiffs’ motions for a directed verdict and for judgment notwithstanding the verdict?

The standard of review in an appeal from a denial of a motion for judgment notwithstanding the verdict made pursuant to Rule 50(b), M.R.Civ.P, is the same as that for review of a motion for a directed verdict, and a directed verdict may be granted only when it appears as a matter of law that the non-moving party could not recover upon any view of the evidence, including the legitimate inferences to be drawn from it. Wilkerson v. Sch. Dist. No. 15, Glacier Cty. (1985), 216 Mont. 203, 211, 700 P.2d 617, 622. This Court’s function on appeal is to review the evidence in a light most favorable to the prevailing party to determine whether substantial evidence supports the jury’s verdict. Sizemore v. Montana Power Co. (1990), [246 Mont. 37,] 803 P.2d 629, 636, 47 St.Rep. 2252, 2256. This Court cannot reweigh the evidence or disturb the findings of a jury unless that evidence is so inherently impossible or improbable as not to be entitled to belief. Sizemore, 803 P.2d at 636, 47 St.Rep. at 2256.

Plaintiffs assert that the jury instructions, when related to the facts of the instant case, conclusively establish negligence on the part of the State which could not be overlooked by the jury. The District Court instructed the jury that the black ice at the accident scene constituted a hazardous condition and that when such a condition is created or maintained by the State, it is not necessary to show, as a condition precedent to liability, that the State had notice of the condition for a sufficient length of time to remedy it. The court further instructed the jury that inherent in the State’s duty of care, when the [501]*501State knows or in the exercise of reasonable care should know of a hazardous condition, is the alternative duty to either eliminate the condition or to post adequate signs warning of the hazard if the condition cannot be immediately corrected. In determining whether the State exercised reasonable care the jury was instructed to consider all surrounding circumstances including the state of the art, the priorities set by the State, the methods of maintenance and practical alternatives.

The State is not an insurer of one who uses the highways. State ex rel. Bjord v. District Court (1977), 175 Mont. 63, 67, 572 P.2d 201, 203. However, the State is under a duty to keep its highways in a reasonably safe condition. Buck v. State (1986), 222 Mont. 423, 429, 723 P.2d 210, 214. The State’s duty to keep its highways in a reasonably safe condition extends to the paved portion of the roadway, to the shoulders and the adjacent parts thereof, including guardrails, or bridge abutments. Buck, 222 Mont. at 429, 723 P.2d at 214. What constitutes a reasonably safe condition is generally considered to be a question of fact. Kaiser v. Town of Whitehall (1986), 221 Mont. 322, 327, 718 P.2d 1341, 1344; Limberhand v. Big Ditch Co. (1985), 218 Mont. 132, 144, 706 P.2d 491, 498.

In this case the accident occurred in an area which is part of a twenty-nine mile section of highway maintained by a four-member maintenance crew. Crew members testified the highway was plowed in the usual manner and it was inevitable that some snow would be left on the shoulders of the roadway and under guardrails. There was testimony that snow along the shoulders of the roadway and under guardrails is common during the winter months on all Montana roads and that this does not, in and of itself, create a hazardous driving condition. Crew members also testified that there was no practical alternative to the way the snow was removed from the roadway due to the type of equipment available, risks to the traveling public, and the number of labor-hours required.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Goles v. Neumann
2011 MT 11 (Montana Supreme Court, 2011)
Johnson v. Costco Wholesale
2007 MT 43 (Montana Supreme Court, 2007)
Bland v. Davison County
1997 SD 92 (South Dakota Supreme Court, 1997)
Kapner, Wolfberg & Associates, Inc. v. Blue Cross & Blue Shield
891 P.2d 530 (Montana Supreme Court, 1995)
Pierce v. ALSC Architects, P.S.
890 P.2d 1254 (Montana Supreme Court, 1995)
Yager v. Deane
853 P.2d 1214 (Montana Supreme Court, 1993)
Barrett v. Larsen
846 P.2d 1012 (Montana Supreme Court, 1993)
C B & F Development Corp. v. Culbertson State Bank
844 P.2d 85 (Montana Supreme Court, 1992)
Baird v. Norwest Bank
843 P.2d 327 (Montana Supreme Court, 1992)
Nautilus Insurance v. First National Insurance
837 P.2d 409 (Montana Supreme Court, 1992)
Silvis Through Silvis v. Hobbs
824 P.2d 1013 (Montana Supreme Court, 1992)
Hash v. State
807 P.2d 1363 (Montana Supreme Court, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
807 P.2d 1363, 247 Mont. 497, 48 State Rptr. 277, 1991 Mont. LEXIS 68, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hash-v-state-mont-1991.