NO. 90-251 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

CHARLES L. HASH, Personal 

Representative of the Estate 

of MICHAEL M. SCOTT, and 

DEBBIE JO SCOTT, 

Plaintiffs and Appellants, 

THE STATE OF MONTANA, 

a body politic, 

CLERK OF SUPREME COUR-; 

STATE OF MONTANA 

Defendant and Respondent. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Leif B. Erickson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Kenneth E. OIBrien; Hash, OIBrien & Bartlett, 

Kalispell, Montana 

For Respondent: 

John Maynard, Chief Defense Counsel, Tort Claims 

Division, Dept. of Administration, Helena, Montana 

I. James Heckathorn; Murphy, Robinson, Heckathorn 

& Phillips, Kalispell, Montana 

Filed: 

Submitted on Briefs: November 15, 1990 

~ecided: March 21, 1991 
Justice John Conway 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 westbound 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 

westbound 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 curve. 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 run 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. Plaintiffs1 

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. (Mont. 1990) , P.2d -, , 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, 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 State 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. PI 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 fourmember 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 travelling public, and the number of labor-hours required. 

In support of their argument that the State was negligent 

plaintiffs point to the Highway Department's maintenance manual 

which prohibits plowing snow to the high side of a curve when 

possible. However, the jury was instructed that it was up to it 

to decide if violations of the maintenance manual constituted 

negligence on the part of the State under the circumstances 

presented. This is in accord with Townsend v. State (1987), 227 

Mont. 206, 738 P.2d 1274, in which we held that violations of the 

maintenance manual is evidence of negligence but is not negligence 

per se. 

The entire twenty-nine mile section of highway was patrolled 

by the maintenance crew during the work week immediately preceding 

the day of the accident. Testimony regarding the road conditions 

during this time was that by September 28 the road was bare and dry 

throughout the entire section. The maintenance crew took the 

weekend off. However, on Saturday, September 29, two members of 

the crew travelled over the road while off duty and did not see any 

wet or icy spots. 

On the morning of September 30, an accident occurred at the 

6 
same site where the Scott accident was to occur the following 

morning. This accident was investigated by Highway Patrol Officer 

Vollrath. Plaintiffs argue that the State had notice of the 

existing icy conditions through Officer Vollrath's investigation 

of the accident. Officer Vollrath testified that when he arrived 

at the scene of the accident the roadway was icy and when he left 

it was wet. He did not notify the maintenance crew of the 

condition of the road because he did not believe there was a 

potential for danger. He stated the weather was warm enough that 

he did not need a coat and he believed that the water would 

evaporate off the highway. He further testified that during the 

eight years he was stationed at East Glacier he had often seen 

water on the roadway and snow under or over the top of the 

guardrails and that water on a corner does not necessarily 

constitute a hazard. 

Anthony Babcock, acting crew foreman on the day of the 

accident, testified that the highway was not patrolled on that day 

because the weather had warmed up to a point where he felt a patrol 

was not needed. Arthur Little, maintenance superintendent, 

testified that the decision of whether or not to patrol the highway 

on a particular day is a judgment call based on the weather. The 

crew members all testified that before the accident they had never 

encountered the situation where only one curve of the highway was 

icy while the remainder of the section was bare and dry. 

These facts rise to the level of substantial evidence required 

to support the jury's verdict. The evidence established a 

reasonable basis for which an honest difference of opinion could 
arise on the question of negligence on the part of State under the 

circumstances presented. Accordingly, we hold the District Court 

did not err denying motions for a directed verdict 

and for judgment notwithstanding the verdict. 

Did the District Court err in giving two jury instructions to 

which plaintiffs objected? 

Plaintiffs1 first argument is directed to Instruction No. 23 

which provides: 

You may not consider evidence of conduct of the 

State in patrolling the highway after October 1, 1984, 

as any evidence of negligence or culpable conduct on the 

part of the State. 

Plaintiffs assert that testimony of subsequent patrol was 

introduced to impeach maintenance foreman Babcockls reason for 

failure to patrol on the day of the accident and the District Court 

erred in giving Instruction No. 23 in that it effectively advised 

the jury that it should not consider this evidence. 

Rule 407, M.R.Evid., addresses subsequent remedial measures 

and states: 

When, after an event, measures are taken which, if 

taken previously, would have made the event less likely 

to occur, evidence of the subsequent measures is not 

admissible to prove negligence or culpable conduct in 

connection with the event. This rule does not require 

the exclusion of evidence of subsequent measures when 

offered for another purpose, such as proving ownership, 

control, or feasibility of precautionary measures, if 

controverted, or impeachment. 

It seems clear that patrolling the highway after the date of the 

accident was a measure which, if taken previously, would have made 

the accident less likely to occur. The District Court properly 
instructed the jury that it could not consider this as evidence of 

negligence or culpable conduct on the part of the State. Although 

the testimony of subsequent patrol could not be considered as 

evidence of negligence or culpable conduct on the part of the 

State, it was admitted into the record and could be considered by 

the jury for another purpose. We hold there was no error in giving 

Instruction No. 23. 

Plaintiffs next contend that the District Court erred in 

giving Instruction No. 14 and refusing plaintiffs' proposed 

Instruction No. 45. Instruction No. 14 reads as follows: 

The State of Montana is not an insurer of the safety 

of persons who use the highways. 

A state must exercise reasonable care to keep the 

highways over which it has exclusive control reasonably 

safe for travel. 

Inherent in the duty of reasonable care to be 

exercised by the defendant, State of Montana, when it 

knows or in the exercise of reasonable care should know 

of a hazardous condition, is the alternative duty either 

to eliminate hazardous conditions or to post adequate and 

appropriate signs to warn the travelling public of their 

presence if the conditions cannot be immediately 

corrected. 

Plaintiffs argue the court erred in that this instruction 

submitted to the jury the issue of whether the State knew or, in 

the exercise of reasonable care, should have known of the hazardous 

condition. Plaintiffs maintain that under the facts established 

by the record the State created the condition and the highway 

patrol had knowledge of the condition; therefore, the State would 

be charged with notice as a matter of law. Plaintiffs' proposed 

instruction would have instructed the jury that under the facts of 

this case the State was presumed to have knowledge of the existing 
icy conditions. 

Jury instructions on appeal are to be viewed in their entirety 

and in light of the evidence presented. Pipe Indus. Ins. Fund 

Trust v. Consol. Pipe Trades Trust (1988), 233 Mont. 162, 168, 760 

P.2d 711, 715. Our review of the jury instructions in their 

entirety shows that ~nstructions Nos. 18 and 21 sufficiently 

instructed the jury in accordance with plaintiffs' theory of the 

case. We hold there was no error in giving Instruction No. 14. 

Af f inned. 

We concur: 

- -...- 

Justices 
Justice William E. Hunt, Sr., dissenting: 

I dissent. In denying the plaintiffs8 motion for judgment 

notwithstanding the verdict or, alternatively, for a newtrial, the 

District Court stated that it was "hard pressed to understand how 

the jury, under the facts and law presented, could have found for 

the [dlefendant . . . . l8 I, too, am hard pressed to understand 

such a verdict. 

The District Court instructed the jury as follows: 

INSTRUCTION NO. 19 

You are instructed that the State should be held liable 

for any injuries or death caused by a dangerous condition 

existing on its highways where such dangerous condition 

was created by the State or its employees. 

It was uncontroverted that the dangerous condition that caused 

the accident in this case was a patch of ice on the highway that 

was formed by snow melting from a snow berm located on the high 

side of a super elevated curve. It was also uncontroverted that 

the snow berm was created by state highway department employees 

when they plowed snow from the highway onto the high side of the 

curve, despite the fact that the highway department's maintenance 

manual specifically prohibited such activity. 

The court also instructed: 

INSTRUCTION NO. 18 

You are instructed that where a hazardous condition 

exists on a highway and such hazard was created or 

maintained by the public authority it is not necessary 

to show as a condition precedent to liability that the 

public authority had notice of such condition for a 

sufficient length of time to remedy it. 
This instruction charged the State with notice of the 

hazardous condition if the condition was created or maintained by 

the State. As I pointed out above, no one contested the fact that 

the State created the hazardous condition by plowing snow on the 

upper side of a super elevated curve. The highway department 

manual itself warned of the dangers that could result from plowing 

snow in this manner by providing: 

Snow should not be deposited or allowed to accumulate on 

the high side of super elevated curves, as this may cause 

a dangerous situation when the snow thaws. Water may run 

across the roadway, freezing as the temperature drops. 

All snow should be plowed from the upperside of the 

curves, when possible, to help avoid icy conditions. 

Despite this provision in the manual, the State argued that it 

could not have foreseen the accident that occurred on this curve. 

As the saying goes, I1Give me a break! 

The court further instructed the jury: 

INSTRUCTION NO. 14 

The State of Montana is not an insurer of the safety of 

persons who use the highways. 

A state must exercise reasonable care to keep the 

highways over which it has exclusive control reasonably 

safe for travel. 

Inherent in the duty of reasonable care to be exercised 

by the defendant, State of Montana, when it knows or in 

the exercise of reasonable care should know of a 

hazardous condition, is the alternative duty either to 

eliminate hazardous conditions or to post adequate and 

appropriate signs to warn the travelling public of their 

presence if the conditions cannot be immediately 

corrected. 

This instruction required the State, once it had notice of the 

hazardous condition, to exercise reasonable care by either 

eliminating the danger or posting warning signs. The instruction 
provided that actual knowledge of the danger was not required, that 

constructive knowledge was adequate. As I pointed out above, the 

highway department manual put the crew members on notice of 

precisely the type of hazard created by snow piled along the side 

of a super elevated curve. Even though it may not have been 

possible to remove the snow berm, as the crew members testified, 

the instruction mandated the State to warn the public that the 

hazard existed. Having failed to warn, the State was liable for 

the accident. 

The jury was also instructed: 

INSTRUCTION NO. 21 

Where the highway patrol discovers a hazardous condition, 

such as an icy road, and there is a reasonable 

possibility of impending danger to users of the highway, 

he has a duty to take precautionary methods to prevent 

such danger. 

This instruction and the highway patrol officer's testimony 

were red herrings. Whether Officer Vollrath thought the area was 

hazardous is not at issue here because it has already been 

established that the State had either actual or constructive 

knowledge of the hazardous condition through the highway department 

employees who created the hazard. 

The facts of this case and the instructions established that 

the State, through the highway department crew members, had a duty 

to the public to exercise reasonable care to keep the highways in 

a reasonably safe condition. The State breached this duty by 

creating a dangerous condition, a snow berm on a super elevated 

curve. The State was charged with the knowledge of this condition 
because it created the condition. The foreseeability of the hazard 

was acknowledged by the highway department crew members as well as 

by the department manual. The State failed to either eliminate 

the hazard or post signs warning of the danger, thus incurring 

liability as a matter of law. 

While we are required to give great deference to the jury's 

findings, there are times when the facts as applied to the 

instructions can lead to but one conclusion. Here, we have such 

a case. The evidence so overwhelmingly points toward the State's 

liability that any other conclusion can only be attributed to a 

misapplication of the law of the case. 

I would reverse the District Court and remand for entry of 

judgment notwithstanding the verdict on the issue of liability and 

a new trial on the issue of damages. 

Justice 

I concur in the foregoing dissent of Justice William E. Hunt, 

Sr. 

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