No. 86-446

IN THE SUPREME COURT OF THE STATE OF MONTANA
1987

MARK TOWNSEND, Individuallyas Guardian ofWAYNE TOWNSEND, a minor, Plaintiffs and Respondents,-vsSTATE OF MONTANA,
Defendant andAppellant.

APPEAL FROM: TheDistrict Court of the Second JudicialDistrict, In and for the County of Silver Bow, The HonorableMark P. Sullivan,Judgepresiding.
COUNSEL OF RECORD:
ForAppellant:
Poore,Roth & Robinson; J. Richard Orizotti,Butte, Montana
For Respondent: Michael McKeon,Anaconda,Montana

-- Submitted on Briefs: April 30, 1987 Decided: June 16, 1987 

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ClerkMr. Justice R.C. McDonough delivered the Opinion of the Court.

The State of Montana appeals the May 28, 1986,order of the District Court of the Second Judicial District granting plaintiff, Mark Townsend's motion for a new trial. We
reverse. On June 4, 1983,nine-and-a-halfyear old Wayne Townsend

was injured when his bicycle hit a pothole on Saddle Rock Road. Saddle Rock Road is a 1.9 mile long black-top road, owned and maintained by the State of Montana. The road is located in the Butte Section of the Butte Division of the Montana Department of Highways. Pat Kane was the Field Maintenance Chief at the time of the accident. Bill Steyh

was the Field Maintenance Supervisor (section man) in charge of the Butte Section. Both individuals testified at trial that while traveling Saddle Rock Road in May of 1983, they noticed potholes starting to form at the site of Wayne's accident. Neitherman thought, inview of the limiteduse of the road, that the formingpotholes constituted an immediate danger to the public. Therefore, repair of the potholes was not immediately ordered. The potholeswere not filled until September of 1983,three months after the accident. The deposition of Don Gruel, Administrator of the Maintenance and Equipment Division of the Montana Department of Highways, was read at trial. Gruel was questioned extensively about a 1965 statute requiring the Department to develop rules for the construction, repair,maintenance and marking of state highways and bridges, S 60-2-201

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## , MCA. Gruel stated that he did not believe the Department had responded to that mandate. He stated further that although the Montana Department of Highways Maintenance Manual was probably the closest thing to rules the Department had in1983,itwas notdeveloped in response to S 60-2-201(4),MCA. Rather, the manual was developed in 1973 at Gruel's instigation to provide guidelines for Department employees state-wide. The jurywas instructed that the Departmentwas required by law to adopt rules for the construction, repair, maintenance, and marking of state highways and bridges and that theMaintenance Manual "wasadopted as requiredby law." Although the State objected to the instruction at trial, neither party objects to this characterizationof the manual
on appeal. We therefore find for purposes of this appeal only that the Maintenance Manual contains the statutorily-mandated rules. The manual and itspurpose are important to this appeal because it contains the following: 4. MAINTENANCEOF BITUMINOUS SURFACE 

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The early detection and repair of minor blemishes is the most important phase of maintenance work. Cracks and other surface breaks which are almost unnoticeable in their early stages, may develop into major repair jobs

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# . if unattended. Such breaks can occur even in a few days where traffic isheavy. For this reason, close inspection of the pavement by competent and experienced personnel is absolutely necessary.

PATCHING POTHOLES This type of failure should have immediate attention. Pot holes or chuck holes are dangerous to traffic, increase rapidly in size and are excellent for feeding water into the base and subgrade.MaintenanceManual,pp. 4-1 and 4-6. Testimony was received regarding the extent employees
were expected to comply with the Maintenance Manual. Pat Kane, Field Maintenance Chief, repeatedly emphasized the discretionary nature of the "guidelines" contained therein. However, plaintiff's attorney would then attempt to impeach Kane with remarks made at his deposition indicating that adherence to the manual was necessary to insure proper work performance. Bill Steyh, section man for the Butte Section, testified that he referred to the manual asa guideline tobe followedwheneverpossible and that "it wasnot good practice to not goby thebook." Pat Kane and Bill Steyh testified about themaintenance work performed on Saddle Rock Road over the years. Written documentation indicated that the last major repair of the area prior to Wayne's accident occurred September 4, 1981, when a blade patch approximately .3 miles long was laid. Both individuals testified that many potholes were hand patched between the September 1981 and September 1983 work; however, they did not remember whether any of the patches were made in the area of the accident. Their diaries indicated hand patching had occurred, but did not specify where. Following the close of three days of testimony,the jury returned a verdict finding that the State of Montanawas not negligent. Plaintiff moved for a new trial April 21, 1986. The memorandum and order granting plaintiff's motion was issuedMay 28, 1986. In it,the trial judge stated: [Tlhe evidence it received during the course of this trial has established overwhelmingly and conclusively that the StateofMontana, through its Department of Highways, was negligent for failing to maintain Saddle Rock Road in a reasonably safe condition. When the State's employees admit that to violate its maintenance manual is bad practiceon their part and then have evidence showing repeated violations of that maintenance manual, there has been established, in this court's opinion,negligence asa matter of law.
The State of Montana raises three issues in its appeal of the order grantingTownsend a new trial. 1. Was there substantial evidence to support the jury's verdict that the State ofMontanawas not negligent? 2. Did the District Court abuse its discretion in ordering a new trial and also holding that the State of Montana was negligentasamatter of law? 3. Did the District Court err in refusing to allow certain testimony relating to the factors considered by the State of Montana, Department of Highways in maintaining roadways,including SaddleRock Road? Our resolution of the first two issues renders considerationof issue number threeunnecessary. The first and second issues are intertwined. The parties are in agreement thathighway employeeswere aware of thepotholes approximatelyonemonth before Wayne's accident. They also agree that thepotholeswere repaired approximately fourmonths after theywere firstnoticed. The realquestion is whether the State's failure to immediately repair these potholes was in violation of its duty to exercise ordinary and reasonable care in maintaining Montana's roads and highways. The jury found no violation of the reasonable care expected. The trial judge disagreed and granted Townsend's motion for a new trial. As support for his decision, the trial judge found thatbecause the State's employeesadmitted violation of their Maintenance Manual was bad practice and because there was evidence of repeated violations of that manual, negligence existed as a matter of law. The Stateargues,andwe agree,that this conclusion is inviolation of Cash v. Otis Elevator Co., et al. (Mont. 1984), 684 P.2d 1041,41 St.Rep. 1077. InCash,we held that violationsof administrative codes not incorporated into a statuteby reference are evidence of negligence, but not negligence per se. Likewise, the admitted violations of the Maintenance Manual provided evidence of negligence. The State then had the burden of producing other evidence to show ithad exercised due care in maintaining SaddleRock Road. Apparently, in the jury'smind at least,the State succeeded inmeeting thisburden. We find that the trial judge erred in concluding that the conduct of the State's employees was negligent as a matter of law. The trial judge relied upon this erroneous principle of law in granting a new trial. Applying the correct standard of negligence to this case there is substantial credible evidence to support the jury verdict. If there is substantial credible evidence to support the jury's verdict, the verdict should stand. Maykuth v. Eaton (Mont. 1984), 687P.2d 726, 727,41 St.Rep. 1800, 1802. PatKane and Bill Steyh testified that thepotholes were just forming and only 1/2 to 3/4 inches deep when first observed in May of 1983. Phil Krisk, the individual who ultimately patched the potholes, testified that they were three inches deep in September, three months after Wayne Townsend's accident. Mark Townsend testified that the potholes were six to eight inches deep at the time ofWayne's accident. The jury was free to accept the testimony of whomever theybelieved tobe most credible. PatKane testified thatpothole size is greatly affected by the type ofvehiclesusing the road. Trucks grossing over 100,000pounds cause potholes to growmuch more quickly than do ordinary passenger cars. People who resided on or nearSaddle Rock Road testified that traffic on that road consisted primarily of the residents' vehicles and a few trucks. Thus, there was sufficient evidence to support a determination by the jury that the State's employees acted reasonably in not immediately repairing shallow potholes whichwere not susceptibleto rapid growth. Townsend contends the jury's verdict improperly invokes the financial feasibility defense. We disagree. The financial feasibility defense has been soundly rejected by

our Court when cost is the State's sole excuse for its failure to construct or maintain properly. State ex rel. Byorth v. District Court (1977),175 Mont. 63, 572 P.2d 201. "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 evidenceon the reasonableness of the alternative taken." Modrell v. State (1978), 179 Mont. 498, 501, 587 P.2d 405,406. The jurywas given the identical instructionapproved in Modrell as to the impermissible use of the financial feasibility defense.
INSTRUCTIONNO. 16
If you find that the Defendant, State of Montana, was negligent in planning, constructing 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 adequate funds or an adequate number of employees is not a factor in the duty of the State to plan, construct and maintain its highways in a reasonably safe condition.
Here, cost is not the State's sole defense. There is a limit to howmany potholes canbe repaired in any given time period. The Department's supervisory employees made a decision based on the severity of the potholes, as well asthe frequency and type of traffic on the road in determining whether repair of the potholes was immediately necessary. They took a calculated risk that the potholes were small enough and the traffic light enough that repair of the potholes could wait without endangering the safety of the traveling public. The jury agreed with the employees1 decision. There is substantial credible evidence to support the jury'sdecision. Reversed and remanded for reinstatement of the jury verdict.

We Concur: 

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Justices