No. 90-322 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

DIRK WALDEN, 

Plaintiff and Appellant, 

v. 

THE STATE OF MONTANA, 

and THE MONTANA STATE 

HIGHWAY DEPARTMENT, 

Defendants and Respondents. 

O%@v,&, 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Thomas M. McKittrick, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Dennis Patrick Conner, Attorney at Law, Great Falls, 

Montana 

Patrick F. Flaherty; Flaherty & Winner, Great Falls, 

Montana 

For Respondents: 

Hon. Marc Racicot, Attorney General, Helena, 

Montana; Norman C. Peterson, Assistant Attorney 

General, Helena, Montana; Lynn M. Grant, Assistant 

Attorney General, Helena, Montana 

Max Davis; Cure, Borer & Davis, Great Falls, Montana 

Submitted on Briefs: May 10, 1991 

Decided: October 2, 

Filed: Ui - 2 1991 
Justice Karla M. Gray delivered the Opinion of the Court. 

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 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 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 tlseamll exists. 

The concrete is originally poured in one piece. After the 

concrete sets, ttcontractiontt 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 ttslab 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 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. 

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 ~istrict 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 

I1persons and vehicles. Plaintiff s Proposed Instruction No. 21 

read in part: 

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 bv 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 bicvclists. 

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 ''normalW 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. 11.1 

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. 12.1 

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 Ifin 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 Waldenls 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 status. In other words, 

automobilists, motorcyclists, bicyclists, pedestrians, and any 

other permitted users all are entitled to highways that are 

reasonably safe for ordinary use. Whether or not a given set of 

circumstances comprises Ifordinary useI1 is a determination to be 

made by the jury. 

The appellant points to a guide published by the American 

Association of State Highway and Transportation Officials (AASHTO) 

and the Federal-Aid Highway Program Manual as authority for his 

argument that the State owes a greater duty to maintain highways 

for bicycle traffic than the jury instructions reflected. The 

appellant interprets this literature as mandating that full 

consideration be given to safely accommodating pedestrian and 

bicycle traffic on all federal-aid highway projects. However, 

giving "full considerationN does not translate into a mandatory 

duty to bicyclists by the State greater than that upon which the 

jury was instructed. 

The AASHTO guide provides suidelines, not strict standards, 

for the construction and design of bicycle routes. Furthermore, 

the purpose of the guide is to I1provide information on the 

development of new facilities to enhance and encourage safe bicycle 

travel." Nowhere does the guide require the duty to bicyclists 
that is suggested by the appellant. Likewise, the Department of 

Transportation Manual does not mandate a State duty to maintain 

its highways for bicyclists. The literature simply provides 

guidance for enhancing the safety of motor vehicle and non-motor 

vehicle traffic by planning for the potential conflict of the two 

types of traffic. 

As we stated in Jacobsen, 236 Mont. 91, 769 P.2d 694, a party 

assigning error to the giving of jury instructions must show 

prejudice in order to prevail. The appellant has failed to show 

how the District Court's failure to give his Proposed Instruction 

Nos. 21 and 51 has adversely affected his substantial rights. The 

jury was properly instructed on the applicable law and Walden was 

not denied instruction on his theory of the case. The omitted 

language making specific reference to bicyclists was appropriately 

covered by the other instructions. 

The second issue raised by the appellant is whether the 

District Court erred in giving Jury Instruction No. 39 regarding 

the practicability and cost of highway repair. The instruction 

read as follows: 

A public entity is not liable for injury caused by 

a dangerous condition of its property of which it had 

actual or constructive notice if it establishes that the 

action taken to protect against the risk of injury 

created by the condition or the failure to take such 

action was reasonable. 

In determininq whether it was reasonable, you shall 

consider the time and opportunity the defendant had to 

take action and weight [sic] the probability and gravity 

of potential injury to persons the defendant should have 

foreseen might be injured against the practicability and 
cost of protecting against the risk of such injury. 

[Instruction No. 39; emphasis added.] 

The appellant argues that this instruction provides the State 

a financial feasibility defense. We disagree. The instruction 

assists the jury in evaluating the llreasonablenessrl ofthe State's 

actions. The financial feasibility defense would provide the State 

with a total escape from liability for failing to properly maintain 

the highways, based solely on a lack of sufficient finances. This 

defense has been rejected by our Court "when cost is the State's 

sole excuse for its failure to construct or maintain properly." 

Townsend v. State (1987), 227 Mont. 206, 210, 738 P.2d 1274, 1277. 

In this case, the District Court also gave the jury the instruction 

from Townsend clearly negating the financial feasibility defense. 

It provided: 

If you find that Defendant State of Montana was 

negligent in planning, construction, signing or 

maintaining the highway in question, you mav not excuse 

the State's neqliqence on the around that proper 

maintenance or lack of rsicl sufficient employees was 

beyond the financial means of the State of Montana. Lack 

of adequate funds or an adequate number of employees is 

not a factor in the duty of the State to plan, construct, 

sign or maintain its highways in a reasonably safe 

condition. [Instruction No. 27; emphasis added.] 

The appellant argues that Instruction Nos. 39 and 27 

contradict each other and leave the jury to consider a financial 

feasibility defense. We do not agree. As this Court stated in 

Modrell v. State (1978), 179 Mont. 498, 501, 587 P.2d 405, 406: 

[Rleliance on cost as the sole and determining factor 

would be tantamount to assertion of a financial 

feasibility defense and therefore impermissible. 

However, where cost is but one among many factors 
affecting the State's choice of a particular method of 

construction or maintenance, it is relevant evidence on 

the reasonableness of the alterative taken. 

The appellant's assertion that the State was provided a financial 

feasibility defense is without merit. The State was entitled to 

present evidence to the jury regarding the reasonableness of its 

actions. 

The third issue is whether the District Court erred in 

refusing the appellant's challenge for cause of a prospective 

juror. The prospective juror in question expressed his opinion of 

lawsuits as cases where somebody is "trying to get a quick buck." 

He expressed concern regarding the effect of too many lawsuits on 

the economy of the nation and the State of Montana. He stated that 

"1 would definitely make it harder on [the appellant] than I would 

on the State, I'm sure." Counsel for the State attempted to 

rehabilitate him by inquiring whether he would be able to set his 

preconceived opinions aside and follow the court's instructions. 

The prospective juror responded "Yes, I think I could do that." 

During the voir dire examination he also stated, in response to an 

inquiry from the State's counsel, that he thought the State of 

Montana should be liable for its negligent acts if its negligent 

acts cause injury to a person. The District Court denied the 

appellant's challenge for cause and the appellant subsequently used 

one of his peremptory challenges to remove the prospective juror. 

The appellant contends that the prospective juror showed an 

unqualified opinion or belief as to the merits of the action and 
that the District Court should have excused him for cause under 

5 25-7-223(6), MCA. He argues that the court's refusal to excuse 

the prospective juror for cause was prejudicial error in that he 

was compelled to waste one of his peremptory challenges. 

The right to peremptory challenges is a substantial right but 

not every case of the forced use of a peremptory challenge is 

grounds for reversal. Abernathy v. Eline Oil Field Services, Inc. 

(1982), 200 Mont. 205, 216, 650 P.2d 772, 778. In the past, this 

Court's practice, in considering the trial court's refusal to 

dismiss a prospective juror for cause, has been to reverse only 

when there is shown an abuse of discretion on the part of the trial 

court. Abernathv, 200 Mont. at 214, 650 P.2d at 777; Mahan v. 

Farmers Union Cent. Exchange (1989), 235 Mont. 410, 417, 768 P.2d 

850, 855; Tacke v. Vermeer Mfg. Co. (1986), 220 Mont. 1, 7, 713 

P.2d 527, 531. It is appropriate at this time to clarify our 

standard of review. 

Rule 47(a), M.R.Civ.P., states as follows: 

Examination of jurors. The court shall permit the 

parties or their attorneys to conduct the examination of 

prospective jurors under its supervision. The court may 

supplement the examination by such further inquiry as it 

deems proper. Challenqes for cause must be tried by the 

court. The juror challenged and any other person may be 

examined as a witness on the trial of a challenge. 

[Emphasis added.] 

Under Rule 47 (a), whether a prospective juror holds a preconceived 

opinion as to the merits of the case or is biased or prejudiced 

against one of the parties is a factual question to be tried by the 

trial court. Thus, in reviewing the trial court Is decision to deny 
a challenge for cause, this Court is reviewing a factual 

determination made by the trial court. 

Rule 52(a), M.R.Civ.P., provides that: 

Findings of fact shall not be set aside unless clearly 

erroneous, and due regard shall be given to the 

opportunity of the trial court to judge of the 

credibility of the witnesses. 

Rule 52(a) itself refers only to findings of fact specially found 

in actions tried without a jury or with an advisory jury. We have 

stated that the findings of fact required by Rule 52(a) are 

"nothing more than a recordation of the essential and determining 

facts upon which the District Court rest[s] its conclusions of law 

and without which the District Court's judgment would lack 

support. 'I In re the Marriage of Barron (1978) , 177 Mont. 161, 164, 

580 P.2d 936, 938. Factual determinations made by the trial court 

when entertaining a challenge for cause do not fall squarely within 

the scope of Rule 52(a). However, because factual determinations 

are being made by the trial court, the Itclearly erroneousw standard 

contained within the rule is the most appropriate standard for 

reviewing the trial court's decision to deny a challenge for cause. 

Therefore, in reviewing the trial court's refusal to excuse the 

prospective juror for cause, we will reverse only where it is shown 

that the court's findings are clearly erroneous. 

In applying the clearly erroneous standard to the trial 

court's findings, our function is not to decide the factual issues 

-- de novo. We will not substitute our judgment for that of the trial 

court absent a showing that the court's findings are clearly 
erroneous, even where there is evidence in the record to support 

contrary findings. Dennis v. Tomahawk Services, Inc. (1989), 235 

Mont. 378, 379, 767 P.2d 346, 347. This is especially true when 

findings are based on determinations regarding the credibility of 

witnesses or, as in this case, the credibility of the prospective 

juror. In such a situation, the trial court must be afforded wide 

latitude in making its findings because the trial court is in a 

better position than this Court to determine whether the 

prospective juror is able to serve impartially. Only the trial 

court has the opportunity of seeing the prospective juror, hearing 

the testimony and noting the manner and demeanor of the prospective 

juror and the inflections in his or her voice, all of which bear 

heavily on the determination of credibility. 

Turning to the particular facts of this case, our review of 

the "cold recordw indicates that certain statements made by the 

prospective juror, standing alone, could support a finding of bias 

or prejudice. However, the prospective juror also stated that he 

thought he could lay his opinions aside and follow the trial 

court's instructions. The trial court had the opportunity to 

observe the prospective juror and to listen to his testimony, and 

based on its observations of his manner, demeanor and tone of 

voice, found that he could serve impartially. We cannot conclude 

that the trial court's finding was clearly erroneous; thus we find 

no clear error on the part of the trial court. 

The fourth issue raised by the appellant is whether he was 
denied a fair trial as a result of the District Court's rulings on 

the bicycle helmet issue. 

The District Court denied Walden's motion in limine requesting 

that the State be precluded from presenting evidence that Walden 

was not wearing a helmet or that such nonuse of a helmet caused the 

accident. At the conclusion of the evidence, Walden moved for a 

directed verdict on the issue of helmet nonuse. This motion was 

also denied. 

The appellant argues that the District Court's denial of his 

motions in limine and for a directed verdict unfairly allowed the 

jury to conclude that the State's negligence was not the cause of 

the appellant's injuries. We disagree. 

Montana law does not require bicyclists to wear helmets; thus, 

the failure to wear a helmet ordinarily does not constitute 

negligence. Our decision in Kopischke v. First Continental Corp. 

(1980), 187 Mont. 471, 610 P.2d 668, that negligence could not be 

predicated upon the failure to wear a seat belt at a time when seat 

belt use was not required, is instructive in this regard. The 

issue in Kopischke was whether the trial court erred in not 

allowing the defendant to introduce a seat belt defense. We 

affirmed the trial court, holding that where the plaintiff could 

not have anticipated the defendant's negligence in causing the 

accident, the plaintiff's lack of use of a seat belt was not 

admissible to show negligence or reduce damages. Under Kopischke, 

the evidence concerning the appellant's failure to wear a helmet 
was not admissible as to negligence. It was not admitted for that 

purpose. Here, the District Court specifically instructed the jury 

that the appellant's failure to wear a helmet was not a legal cause 

of the accident and did not constitute negligence. 

The evidence also was not admissible on the question of 

damages under our holding in Ko~ischke. Thus, the District Court 

erred in admitting the evidence. In rendering its verdict in this 

case, however, the jury determined that any negligence of the State 

was not a legal cause of the appellantls injury; it never reached 

the question of damages. Thus, any error on the issue of helmet 

nonuse was harmless and the appellant was not denied his right to 

a fair trial. 

The final issue raised is whether the District Court erred in 

allowing the testimony of Professor Curtis Shirer. 

Walden testified in his deposition that he had taken a bicycle 

safety class at Montana State University. Professor Shirer was the 

instructor and was called by the State to describe the course 

material. 

The appellant objected to much of Shirerls testimony on the 

grounds that it was expert opinion testimony. The State's response 

was that Shirer was a fact witness and was "not going to offer in 

any way his opinion. l1 

~pecifically, Walden objects to four items of Shirer's 

testimony. Shirer testified that in his course: he taught the 

absolute necessity of wearing a helmet when bicycle riding; he told 
his students that the effect of falling off a bike without a helmet 

on is much like taking a cantaloupe and tossing it into the air and 

letting it hit the ground; he gave examples to his students of 

friends of his that have had helmets save their lives in bicycle 

accidents; and he told his students of studies that indicate 75 

percent of all bicycle fatalities are head injuries. 

This testimony was offered as a description of course material 

Walden had taken at college. If, as asserted by the State, Shirer 

was a fact witness testifying only about what he taught in the 

bicycle course, then the State must present connecting facts to 

show that Shirer taught Walden the material in order to establish 

the relevancy of the testimony. Rules 104(b), 401, M.R.Evid. The 

testimony indicated, however, that Shirer did not remember Walden; 

nor did he recognize Walden after he was pointed out in the 

courtroom. Furthermore, Shirer testified that some of the material 

may have been taught in optional classes that Walden had not 

attended. Under these circumstances, the testimony was not 

relevant under Rule 401, M.R.Evid., and therefore, was not 

admissible under Rule 402, M.R.Evid. 

In any event, a nonexpert witness is generally limited to 

testifying to matters of fact. Estate of Smith (1988), 230 Mont. 

140, 749 P.2d 512. Shirerts testimony had very little factual 

substance. Shirerts reference to tossing a cantaloupe into the air 

and watching it hit the ground is not factual testimony. Simply 

because this is material Shirer lectured on in his classes does not 
make it factual testimony. The thrust of the testimony was not 

the fact that he taught this material, but rather the material 

itself; and this material was, to a large extent, Shirerls opinion. 

A lay witness' opinion must be helpful to a clear understanding of 

his testimony or the determination of a fact in issue. Rule 701, 

M.R.Evid. The descriptive picture painted by Shirerls testimony 

failed to serve either of these purposes. 

For these reasons, we find the District Court erred in 

allowing Shirer to testify to the extent he did. The error did not 

prejudice the appellant, however, since the evidence went only to 

the question of damages and the jury decided the case solely on 

the question of liability. 

Affirmed. 

We concur: // 

Chief Justice 

Justices 

18 
Justice William E. Hunt, Sr., dissenting. 

I dissent from the majority's opinion and would remand this 

case to the District Court for a new trial. The majority opinion 

considered five issues on appeal. I would reverse on Issues 11, 

111, and V. 

ISSUE I1 

Appellant contends the District Court's offering, over 

objection, of Jury Instruction No. 39 regarding the practicability 

and cost of highway construction and maintenance, constituted 

reversible error. I agree. 

The instruction at issue read as follows: 

A public entity is not liable for injury caused by a 

dangerous condition of its property of which it had 

actual or constructive notice if it establishes that the 

action taken to protect against the risk of injury 

created by the condition or the failure to take such 

action was reasonable. 

In determinins whether it was reasonable, you shall 

consider the time and opportunity the defendant had to 

take action and weight [sic] the probability and gravity 

of potential injury to persons the defendant should have 

foreseen might be injured asainst the practicability and 

cost of protectins asainst the risk of such injury. 

[Emphasis added.] 

In essence, this instruction provides the State with a 

financial feasibility defense. This Court has previously held such 

a defense is not available to the State. State ex rel. Byorth v. 

District Court Mont . Byorth 

indicated that such a defense was never available to a private 

party and should not be available to the State. The financial 
feasibility defense has been before this Court on two occasions 

subsequent to Bvorth. Modrell v. State (1978), 179 Mont. 498, 587 

P.2d 405; Townsend v. State (1987), 227 Mont. 206, 738 P.2d 1274. 

In both decisions, this Court reaffirmed the Bvorth holding. The 

following instruction, which was given in the present case as 

Instruction No. 27, was approved of by this Court in both Modrell 

and Townsend: 

If you find that Defendant State of Montana was negligent 

in planning, construction, signing or maintaining the 

highway in question, you may not excuse the State's 

negligence on the ground that proper maintenance or lack 

of sufficient employees was beyond the financial means 

of the State of Montana. Lack of adeauate funds or an 

adeauate number of emplovees is not a factor in the dutv 

of the State to plan, construct, sisn or maintain its 

hiqhwavs in a reasonably safe condition. [Emphasis 

added. ] 

Neither Modrell nor Townsend dealt with a jury instruction 

similar to ~nstruction No. 39. However, in both cases the issue 

of a financial feasibility defense was raised at trial, contrary 

to our holding in Bvorth. First in Modrell, then in Townsend, this 

Court apparently approved the introduction of evidence concerning 

the financial feasibility of various alternative courses of action 

by the State. The Court indicated that although Bvorth was still 

the law in Montana, cost could be considered in the jury's 

determination of the reasonableness of the State's action in 

constructing and maintaining its highways. It was this language 

upon which the District Court understandably based its decision to 

give the respondents' requested instruction concerning cost and 
practicability, resulting in the clearly contradictory instructions 

before the jury. Thus, the jury was told on the one hand that cost 

or financial feasibility was not a defense to any negligence by the 

State, while at the same time they were instructed to consider cost 

in determining if the State's actions were reasonable, i.e., 

negligent or not negligent. As Justice John C. Sheehy correctly 

pointed out in his dissent in Modrell: 

I am also of the opinion that there is an irreconcilable 

conflict between the holding in the majority opinion and 

our holding in the Bvorth case. In Bvorth, this Court 

stated if the State failed to discharge its duty to 

construct reasonably safe highways, and that failure 

resulted in injury, the State was liable "regardless of 

[its] personal financial priorities." 572 P.2d at 203. 

Yet here we are stating that financial priorities are a 

"factorw in determining negligence. Thus we now accord 

the State what was condemned in Bvorth, "a defense a 

private party never had." 572 P.2d at 203. 

Modrell, 587 P.2d at 410. 

Faced with these contradictory instructions given by the trial 

court there was no way for the jury to determine if cost was or was 

not a proper factor for their consideration in determining if the 

State was negligent. I am persuaded this Court's original analysis 

set forth in Byorth was correct and that financial feasibility 

should not be a factor in determining whether the State planned, 

constructed, or maintained its highways in a negligent manner. 

ISSUE I11 

The third issue considered by the majority concerned the 

District Court's refusal of appellant's challenge for cause of a 

prospective juror. I accept the majority's decision that the 
proper standard of review in this situation should be a clearly 

erroneous standard. However, even when reviewing the trial court's 

decision under this standard, which requires this Court to defer 

to the decision below unless clearly erroneous, I would reverse on 

this issue. 

The Montana Constitution, art. 11, 5 26, guarantees the right 

to a jury trial, and as we have previously stated "[c]oncomitant 

with that right is the right to a fair and impartial jury.'' Mahan 

v. Farmers Union Central Exchange (1989), 235 Mont. 410, 418, 768 

P.2d 850, 855. A prospective juror who has demonstrated Itan 

unqualified opinion or belief as to the merits of the action . . . 11 

is subject to a challenge for cause. Section 25-7-223 (6) , MCA. 

Additionally, the statute provides that a challenge for cause is 

proper in light of statements by the prospective juror "evincing 

enmity against or bias in favor of either party." Section 

25-7-223 (7), MCA. 

The statements made by the prospective juror in this case 

clearly fall within the statutory criteria for excluding a juror 

for cause. Even after attempted rehabilitation, the juror was only 

able to say that he thousht he could be impartial and follow the 

law. This is clearly insufficient. After appellant's challenge 

for cause, the prospective juror continued to demonstrate enmity 

against appellant's action and bias in favor of the State. 

Appellant was entitled to have this juror dismissed for cause in 

light of the juror's candid admissions of an unqualified opinion 

22 
and belief as to the merits of the action. Appellant was forced 

to use a peremptory challenge to disqualify the juror. Appellant 

used all of his peremptory challenges. 

The majority correctly points out that it is reversible error 

when the trial court, in an abuse of discretion, fails to properly 

dismiss a juror for cause. Abernathy v. Eline Oil Field Services, 

Inc. (1982), 200 Mont. 205, 216, 650 P.2d. 772, 778. This 

principle is unaffected by the majority's adoption of the clearly 

erroneous standard in place of the abuse of discretion standard. 

I would reverse on this issue. 

ISSUE V 

I agree with the majority's analysis of the testimony offered 

by respondents witness, Shirer, inasmuch as the majority found the 

testimony was error. However, the testimony in question was 

extremely prejudicial and I would, therefore, reverse and remand 

for a new trial. 

I concur with the foregoing dissent of Justice Hunt.