No. 86-446 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

MARK TOWNSEND, Individually as 

Guardian of WAYNE TOWNSEND, a 

minor, 

Plaintiffs and Respondents, 

-vsSTATE OF MONTANA, 

Defendant and Appellant. 

APPEAL FROM: The District Court of the Second Judicial District, 

In and for the County of Silver Bow, 

The Honorable Mark P. Sullivan, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Poore, Roth & Robinson; J. Richard Orizotti, Butte, 

Montana 

For Respondent : 

Michael McKeon, Anaconda, Montana 

-- 

Submitted on Briefs: April 30, 1987 

Decided: June 16, 1987 

JUN 1 j 1987 

~i led : 

&e *, 

Clerk 
Mr. 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-half year 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. Neither man thought, in view of the limited use of 

the road, that the forming potholes constituted an immediate 

danger to the public. Therefore, repair of the potholes was 

not immediately ordered. The potholes were 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 (4) , 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 in 
1983, it was not developed 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 jury was instructed that the Department was required 

by law to adopt rules for the construction, repair, 

maintenance, and marking of state highways and bridges and 

that the Maintenance Manual "was adopted as required by law." 

Although the State objected to the instruction at trial, 

neither party objects to this characterization of 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 its purpose are important to this appeal 

because it contains the following: 

4. MAINTENANCE - OF BITUMINOUS SURFACE 

4.10 GENERAL DESCRIPTION 

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 . . . if unattended. Such 

breaks can occur even in a few days where traffic 

is heavy. For this reason, close inspection of the 

pavement by competent and experienced personnel is 

absolutely necessary. 

PATCHING POT HOLES 

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. 
Maintenance Manual, 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 as a guideline to be 

followed whenever possible and that "it was not good practice 

to not go by the book." 

Pat Kane and Bill Steyh testified about the maintenance 

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 Montana was not 

negligent. Plaintiff moved for a new trial April 21, 1986. 

The memorandum and order granting plaintiff's motion was 

issued May 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 State of Montana, 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 practice 
on their part and then have evidence showing 

repeated violations of that maintenance manual, 

there has been established, in this court's 

opinion, negligence as a matter of law. 

The State of Montana raises three issues in its appeal 

of the order granting Townsend a new trial. 

1. Was there substantial evidence to support the jury's 

verdict that the State of Montana was not negligent? 

2. Did the District Court abuse its discretion in 

ordering a new trial and also holding that the State of 

Montana was negligent as a matter 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 Saddle Rock Road? 

Our resolution of the first two issues renders 

consideration of issue number three unnecessary. 

The first and second issues are intertwined. The 

parties are in agreement that highway employees were aware of 

the potholes approximately one month before Wayne's accident. 

They also agree that the potholes were repaired approximately 

four months after they were first noticed. The real question 

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 that because the State's employees admitted 

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 State 
argues, and we agree, that this conclusion is in violation of 

Cash v. Otis Elevator Co., et al. (Mont. 1984), 684 P.2d 

1041, 41 St.Rep. 1077. 

In Cash, we held that violations of administrative codes 

not incorporated into a statute by 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 it had exercised due care in 

maintaining Saddle Rock Road. Apparently, in the jury's mind 

at least, the State succeeded in meeting this burden. 

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), 687 P.2d 726, 727, 41 St.Rep. 1800, 1802. 

Pat Kane and Bill Steyh testified that the potholes 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 of Wayne's 

accident. The jury was free to accept the testimony of 

whomever they believed to be most credible. 

Pat Kane testified that pothole size is greatly affected 

by the type of vehicles using the road. Trucks grossing over 

100,000 pounds cause potholes to grow much more quickly than 

do ordinary passenger cars. People who resided on or near 
Saddle 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 

which were not susceptible to 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 evidence on the reasonableness of 

the alternative taken." Modrell v. State (1978), 179 Mont. 

498, 501, 587 P.2d 405, 406. 

The jury was given the identical instruction approved in 

Modrell as to the impermissible use of the financial 

feasibility defense. 

INSTRUCTION NO. 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 how many potholes can be repaired in any given time 

period. The Department's supervisory employees made a 

decision based on the severity of the potholes, as well as 
the 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's decision. 

Reversed and remanded for reinstatement of the jury 

verdict. 

We Concur: - 

/=-+=/+ / 

Chief Justice 

I 

Justices