No. 91-585 IN THE SUPREME COURT OF THE STATE OF MONTANA

MICHAEL BROCKIE, as Personal Representative of the Estate of ARIC C. BROCKIE, Deceased, Plaintiff and Appellant,

OM0 CONSTRUCTION, INC., Defendant and Respondent.

APPEAL FROM: District Court of the First Judicial District, In and for the County of Lewis and Clark, The Honorable Thomas C. Honzel, Judge presiding.

COUNSEL OF RECORD: For Appellant: Kurt M. Jackson, Hoyt and Blewett, Great Falls, Montana For Respondent: Michael J. Milodragovich and Margaret L. Sanner, ~ilodragovich, Dale and Dye,Missoula, Montana

Submitted on Briefs: June 11, 1992Justice R. C. McDonough delivered the Opinion of the Court.
Michael 

### Brockie,personal representativeof

### the

### estate

### of

### Aric C. Brockie, appeals from an order of the First ~udicial ~istrict, Lewis and Clark County, denying his motion for 

### a new 

### trial. We affirm 

### in part and reverse in part. The following issues are presented on appeal: 1. Whether the District Court erred in denying Brockie's motion for a new trial; 2. Whether the District Court erred in refusing to instruct the jury that Omo Construction, 1nc.I~ violation of the Manual on Uniform Traffic Control Devices constituted negligence 

### as amatter of law; 3. Whether the District Court 

### erred in refusing to instruct the jury that mere compliance with traffic regulations does not necessarily constitute 

### due care; and 4. Whether the District Court erred in excluding certain impeachment evidenceandby admittingcertain prejudicial evidence. On November 26, 1989,

### Aric Brockie 

### was killed in a one 

### car accident on 1-94 near the Huntley Interchange east of Billings. Aric Brockie was the passenger in a vehicle driven by a friend. The 

### twowere returning to Billings after aThanksgiving holiday in Miles City. The vehicle skidded as it approached an icy bridge. The car slid off the highway into the median where it struck a flasherboard owned by Omo Construction, Inc. (Omo). Omo 

### was performing traffic control and guardrailwork on 1-94



### as part of 

### a construction contract with the State Highway 2Department. On Wednesday, November 22, 1989, Omo had installed a new guardrail and median hazard closureson a bridge structure. In order to erect theguardrail on themedian sides of the

### bridge, the

crew was required to close the passing lane of the interstate in each direction 

### of travel. Omo erected a number of advancewarning signs for each lane plus two portable "arrowboards" or Itflasher boardsnwhich directed traffic with flashing arrows. At the end of the day, on Wednesday, November 22, 1989, the foreman on the project directed worker Michael Stookey to remove the equipment from the highway and store it for the Thanksgiving holiday. Stookey removed the advance warning signs to a location east of the bridge next to the highway right-of-way fence. He pulled other signs to the parking lot of the Longhorn Cafe. Upon instructions from the foreman he placed the flasher boards in the middle of themedian at either end of the bridge. Highway Patrol Officer Virginia Kinsey drove past the area several timesduringher shiftonNovember 26, 1989. Shetestified that she had the authority to 

### have construction equipment removed if it was hazardous to the public. She saw the flasherboard and did not believe it was 

### in a hazardous area. Officer Kinsey responded to the Brockie accident and along 

### with two other officers,made measurements at the scene. She testified that the flasherboard was 27 feet 2 inches from theyellowmedian strip of the westbound lane at the time of impact. ~raffic control provisions of the contract required compliance with highway safety

### standards. A "30 

### foot clear" zonerequirement prohibits storageof

a traffic control device within 30 

### feet of the traveled highway. Omo's expert, Dr. ThomasBlotter, anaccident reconstruction expert,opined that the flasherboard wasparked between 34 and 48 feet from the westbound lane at the time of impact. Dr. Blotter testified at trial, basing his analysis on motion theory and kinematics. Since Brockie did not put an expert on the stand,Dr. Blotter's testimony went uncontroverted. Francis 

### H. Rice, the jury foreman, after the close of the evidence, went to the library of Carroll College to do some research about Dr. Blotter's testimony. Rice had taken some physics courses in college, and by affidavit, stated hewished to refresh his memory about physics principles concerning kinematic theory and motion theory. He stated his research clarified the testimony of Dr. Blotter. Rice stated that he mentioned to only

one other juror that over the weekend he had done some research into kinematic theory and motion theory. However, affidavits of two separate jurors stated Rice mentioned his research to them in the jury room. By affidavit Rice stated he did not mention his research during deliberations. Brockie's counsel, upon hearing that Rice had done some independent research, filed a motion for a new trial with the DistrictCourt. TheDistrict Courtdenied Brockie'smotion

# . This appeal followed. Our standard of review is whether or not the District Court abused its discretion in denying Brockie's motionfor a new trial and ruling on evidentiary matters. Steer, Inc. v. Dept. of Revenue (1990), 245 Mont. 470, 803 P.2d 601. I Whether the District Court erred in denying Brockie's motion for a new trial. The District Court found that the actionsofMr. Rice amounted to jury misconduct. However, relying on Arthurv. Washington Iron Works (1978), 22 Wash.App. 61, 587 P.2d 626, the District Court found that Rice's conduct was not prejudicial to Brockie. In Arthur, the jury foreman went to the public library and looked for handbooks on rigging and informed the other jurors they were available. He also examined theyellowpages to see if the experts who testifiedwere listed. Arthur, 587 P.2d at 628. The court of appeals upheld the trial court's determination that the library incident went to the credibility of the witness and that the telephone directory incident gave extra status to the expert listed. Arthur, 587 P.2d at 631. Generally, courts in both civil and criminal cases have held that to warrant a new trial, the misconduct must be such that actual or potential injury results to the losing party. Section 25-11-102, MCA, governs grounds for a new trial. It provides in part: The former verdict or other decision may be vacated and a new trial granted on the application of the party aggrieved for any of the following causesmaterially affecting the substantial rights of such party; (1) irregularity in the proceedings of the court, jury, or adverseparty or any order of 5

### the court or abuse of discretion by which either party was prevented fromhaving a fair trial. (2) misconduct of jury. Whenever any one or more of the jurors have been induced toassent to any general or special verdict or to a finding on any question submitted to them by the court by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors. See also Rule 606,M.R. Evid. We agree with the District Court that the actions of juror Rice constituted jury misconduct, as shown by his affidavit, and the affidavit of two other jurors. The questionbefore us remains whether actual orpotential injury to Brockie resulted fromRice's conduct, and denied Brockie a fair trial. Wehave said in Putrov. Baker & 

### Mannix Electric, Inc. (1966), 147Mont. 139, 410 P.2d 717, that the "guiding principle in our legal system is fairnessn and thatboth sides of the lawsuitare entitled to a fair trial. Putro at 147, 410 P.2d at 722. We went on to state that there is no practical method to determine whether the outcome would be different had the misconduct not occurred. We said: "The trial court should have declared a mistrial in justice to itself aswell as toparties, so that a fair trialmay result and theverdictwhen rendered may be entitled to the respect of both parties and the confidence of the court." Putro at 148, 410 P.2d at 722. In Putro a newspaper article disclosed that the defendant plead guilty to manslaughter, in a related criminal case, as a result of the accident in question. One of the jurors clipped the article and brought it into the jury room. The jurors stated thatthe article did not influence their verdict. Further, two of the jurors stated that they dropped the subject because they did not think they should read the article. We held that the possibility of influence existed, and probable prejudice resulted. 

### PutrQ at 149, 410 P.2d at 723. InAhmann v. American Fed. Sav. & LoanAss'n (1988)

### , 235Mont. 184, 766 P.2d 853, we held that any influence the alleged remark of the bailiff may have had on the jury did not affect the rights of the Ahmanns, and affirmed 

### the District Court's denial of Ahmann's motion for a new trial. In Ahmann the jurors raised a question forthe judge. Thebailiff said the judgewouldn't answer ituntil after the trial. However,he did not preclude the jurors from pursuing the matter. Ahmann at 191, 766 P.2d at 857. Inthepresent case,Omo presented the expert testimony of Dr. Blotter at the trial. Dr. Blotter testified to the theory of kinematics and motion theory in relation to the location of the flasherboard at the time of impact. Dr. Blotter's testimonywas not contested or controverted by an expert, but was contested by the testimony of highway patrolman Kinsey. The location of the flasherboard was at thevery heart of the evidence. Francis Rice by affidavit, related that hewent to the Carroll College library to research the theory of kinematics and motion theory and it clarified Dr. Blotter's testimony. Affidavits of two other jurors confirmed hehad mentioned this to them in the jury room. Probable prejudice resulted from Rice's misconduct. Rice's independent alleged clarification of 

### Dr. Blotter's testimony affected therights of Brockie for any statements by Rice in the jury room relative to the placement and positions of the sign, could in effect make Rice a witness as to those jurors to whom hementioned his research. We conclude the District Court abused its discretion in denying Brockie's motion for a new trial. Becausewe remand for a
new trial, the balance of the issues are instructive only. I1 Whether the District Court erred in refusing to instruct the jury that Omo Construction, Inc.'s violation of the Manual on UniformTraffic Control Devices constituted negligence as a matter of law. The District Court refused Brockie's jury instruction that a violation of theManual onUniform Traffic Control Devices (MUTCD) isnegligence per se. In 1955 the legislature authorized the State Highway Department to adopt a manual on traffic control devices. The State Highway Commission adopted the MUTCD in 1971. In 1981 the legislature amended 

### 5 61-8-202, MCA, to clarify which traffic control manual the highway department should adopt. The statute

now states: "Thedepartment of transportation shall adopt

### amanual for a uniform system of traffic-control devices

# . . .I1 Section 61- 8-202, MCA. 

### If the legislature mandates a department to adopt rulesbut doesnot act further to adopt the rules,the rulesdo not become part of a statute by reference. Cash v. Otis Elevator Co.

(1984), 210 Mont. 319, 326, 684 P.2d 1041, 1045. Here, the MUTCD 

### is not incorporated by reference. The MUTCD is not a statute butan administrative regulation. Violation of the MUTCD is not negligence per se but evidence of negligence. See Williams v. Maley (1967),150Mont. 261, 434 P.2d 398,Herbstv.Miller (1992),



### -Mont. 

## -, 830 P.2d 1268. We conclude that the District Court did not err in denying Brockie's proposed instruction that a violation of the MUTCD was negligence per se.

Whether the District Court erred in refusing to instruct the jury that mere compliancewith the traffic control regulations does not necessarily constitute due care. The District Court refused Brockie's instruction number 44. Instruction 44 Provided: If you find that defendant OM0 Construction, Inc. placed the arrow board more than thirty (30) feet from any traffic lane, you are instructed that defendant Omo Construction, Inc. was still required to comply with the provisions of its contract including the requirements of the MUTCD. Brockie argues that the District Court's refusal of this instruction encouraged the jury to conclude that mere compliance with the 30 foot clear zone constituted due care. The District Court also refused Brockie's No. 17 which instructed the jury that Omo had a duty to remove obstacles which may constitute an unreasonable danger tomotor vehicles and a violation of that duty is evidence of negligence. However, the District Court provided the jury with proposed instructions 42 and 45 which provide respectively:INSTRUCTIONNO. 42 Ordinary care is not an absolute term,but a relative one. That is to say, in deciding whether ordinary carewas exercised in a given case, the conduct in question must be viewed in light of all the surrounding circumstances, as shown by the evidence in the case. INSTRUCTIONNO. 45 On December 1, 1971, the Manual on Uniform Traffic Control Devices (MUTCD)

## , was adopted by the Montana Highway Commission as a standard or norm to be used for traffic control devices. Pursuant to the contract signed by the defendant Omo Construction, Inc., it was required to comply with the requirements of the MUTCD. If you find that defendant Omo Construction, Inc. violated any of the provisions of theMUTCD, youmay consider such violation as evidence of Omo's negligence in this case. We conclude that the District Court's instructions properly instructed the jury. Therefore the District Court did not err in refusing Brockie'sproposed instructions.

Whether the District Court erred in excluding certain impeachment evidenceandby admitting certain prejudicialevidence. The District Court granted Orno's motion in liminepreventing Mr. Charlton,a retired ProjectManager fortheHighway Department, from testifying on certain matters. On the Monday following the accident, Mr. Charlton visited the accident scene and made some measurements ofhighway equipment storedby Omo. WhenMr. Charlton arrived at the site, the flasherboard in questionhad alreadybeen removed. He made measurements of the other flasher board on theother side of the bridge and equipment some distance from the accident site. The District Court ruled that only evidence concerning the accident would be relevant. On direct examination, Mr. Charlton testified that for safety's sake, obstructions should be completely removed from the median. On cross examination, Mr. Charlton testified that the other flasher board parked in themedian on the other side of the bridge was outside the clear zone and in conformity with the requirements of the State of Montana. The District Court did not allow redirect examination about equipment unrelated to the accident,placed some two miles from the accident site. Brockie sought to 'impeach' Mr. Charlton through testimony that this other equipment, although in compliance with the clear zone, should be removed for safety reasons. Impeachment is typically used to test the veracity of a witness. On direct examination, Mr. Charlton testified that obstructions should be removed for the sake of safety. However,he admitted on cross that the other flasher board conformed with State requirements. Any testimony stating that equipment two miles from the accident site should have been removed for safety's sake would not be proper impeachment. The placement of the equipment two miles from the accident site is irrelevant, thus testimony regarding this equipment would not be proper impeachment. Brockie argues that Mr. Charlton's testimony that the flasher board on the other side of thebridge was in the clear zoneand in conformity with the requirements of the State of Montana wasprejudicial based on Rule 403, M.R.Evid. Rule 403 excludes evidence if itsprobative value is substantially outweighed by the danger of unfair prejudice. Because Mr. Charlton testified that any obstructions should be removed for the sake of safety, we do not find this testimony prejudicial. We conclude that the District Court did not err in refusing Mr. Charlton's testimony regarding the other equipment. For the reasons setforthabove, we reverse and remand to the District Court for proceeding not inconsistentwith this opinion.

Justices

### Justice Terry 

### N. Trieweiler specially concurring and dissenting. I concur with the majority's conclusion under Issue I that Michael Brockie is entitled to a new trial,based upon misconduct of the juror, Francis Rice. I also concur with the majority's conclusion under Issue IV that the District Court did not abuse its discretion by limiting the redirect examination of Robert Charlton. However, I do not agree with all that is said in the majority's rationale for that conclusion. Specifically, I do not agree that the questionsposed to Charlton on redirect examination were improper for purposes of impeachment. However, Ido agree that theDistrict Courthasbroad discretion when it rules on the propriety of cross-examination or redirect examination. In this case, I agree that that discretion

was not abused. I

### dissent from the majority's conclusionsunder Issues I1and I11 which relate to the District Court's jury instructions. I conclude that based on our prior case law, and based upon thebetterpublic policy, the jury shouldhavebeen instructedthat

a violation of the Manual on Uniform Traffic Control Devices is negligence as a matter of law. While themajority relies on ourprior decisions in

### Cashv.Oh ElevatorCompany (1984), 210 Mont. 319, 684 P.2d 1041, and 

### Williamsv. Maley (1967), 150 Mont. 261, 434 P.2d 398, I conclude that our decision in

### Martelv.MontanaPowerCompany (1988)

## , 231 Mont. 96, 752 P.2d 140, is controlling.

### The 

### WiIhrnsdecision isnot relevant to our conclusionon this issue because it was decided in 1967, and as pointed out by the majority, the statute upon which it relied was materially amended in 1981. At the time that 

### Wlliams was decided, 5 

### 32-2134,R.C.M. (now5 

### 61-8-202,MCA), made no reference to the Manual on Uniform Traffic Control Devices. Therefore, theHighway Commissionhad no direct mandate from the legislature to consider or adopt that manual. The majority opinion points out that that section was amended in 1981. However, when quoting the statute, the majority fails to include the amended portion. Significantly to our decision, the full statute now reads as follows: The department of transportation shall adopt a manual for a uniform system of traffic-control devices consistent withthischapter foruseupon highways within the state. This uniform svstem shall correlate with and so far as ~0sSibleconform to the manual on uniform traffic control devices, as amended. [Emphasisadded.] Section 61-8-202,MCA. In other words, at the time that 

### William was decided, the statutewhich authorized the Highway Commission to adopt a manual for uniform signing of highways made no specific reference to the MUTCD. At all times relevant to this action, the statute in question mandated that the Department of Transportation adopt a manual and that it conform as closely as possible to the MUTCD. The correct analysis under our case law regarding when the violation of national standards, such as the MUTCD, constitutes negligence per se is found in

### Herbst

### v.Miller (Mont. 1992), 830 

### P.2d 1268, 49 St. Rep. 40. In that case, we gave the following

### explanation of the legal effect of national standards which have been adopted in Montana: We have held that violation of an administrative rule adopted under 5 

### 50-60-203, MCA, as in the instant case, is not negligence per se but instead is evidence of negligence. Cash v.

### OhElevatorCompany 

### (1984 )

## , 210 Mont

# . 319, 684 P.2d 1041. In 

### Oh, we recognize that 

### 5 50-60-203, MCA,mandates theDepartment of Commerce to adopt rulesbut that the legislature did not act further to incorporate by reference the rules adopted by the agency. In contrast, we held that violation of a national standard adoptedby specific statutoryreference is negligence as a matter of law. Martelv.MontanaPower Company 

### (1988), 231Mont. 96, 752 P.2d 140. 

# .

# ..

. . . The Town of Belgrade adopted a resolution whereby the UBC [UniformBuilding Code] is incorporated by reference. 

# . . .

.. .Miller's failureto install ahandrail leading to the basement apartment is a failure to maintain her building inadherencewith the ordinanceand istherefore a violation of the ordinance. It is long settled that violation of a city ordinance constitutes negligenceper se. Marshv.Ayers 

### (1927), 80Mont. 401, 260 P. 702. Herbst, 

### 830 P.2d at 1271. The Town of Belgrade adopted the Uniform Building Code by reference, and therefore, we found that violation of the building code was negligence per se. The Montana Legislature mandated that the Department of Transportation "adopt 

### a manual for a uniform system of traffic-controldevices,"and that so faraspossible it conformto the "manual on uniform traffic control devices, as amended." Section 61-8-202,MCA. From that point on, theMUTCD was clearly "a national standard adopted by specific statutory reference." I fail to see any practical difference between the circumstances in

### this case, 

### and the circumstances 

### inHerbst 

### orMartel. 

### Furthermore, I fail 

### to see 

### any justification from a 

### public policy point of view 

### for giving greater legal significanceto theUniform Building Code

or 

### the 

### National Electric Safety 

### Code, than the Manual on 

### Uniform Traffic Control Devices. As a practical matter, they are all part of the law of the State of Montana. They were all enacted to protect the

### public and make Montana a saferplace 

### to live,and the violation of 

### one creates just asmuch potential for danger as 

### the violationof 

### another. Themajorityopinion constructs intellectual distinctions which make no practical difference, and which are neither supportedby 

### ourprior case law nor common sense. Itdoes nothing to further the historical purposes of the law of negligence. Finally, I 

### dissent from the majority opinion because I 

### disagree with 

### this Court's conclusion, which had 

### its genesis in 

### Stepanekv.KoberConstruction (lgsl), 191 

### Mont. 430, 625 

### p.2d 51, 

### that there isany rationalbasis for treating theviolation of a statute 

### any differently 

### than the violation of a 

### lawfully enacted safety regulation. 

### Both the statute and the safety regulation have the

same purpose. Both are enacted for the public's protection, and presuming that proper procedures were followed, both are 

### equally enforceable in the event of their violation. 

### When it comes to determining whether one or the other can be used as a threshold standardby

### which to evaluate theexerciseof reasonablecare,

### what

reason is there to treat one differently than the other?

### Safety regulations are adopted

### by thevarious stateagencies,



### or adopted 

### pursuant to 

### notice to 

### interested parties. 

### They are 

### enacted to further

### a legislative purpose forwhich that agencywas established,and 

### they presumably establish standards of reasonable conduct 

### in the 

### industry or area 

### of activity with 

### which they are 

### concerned. Therefore,when 

### it comes 

### to a conclusion about whether

a violation of the law amounts to negligence per se, I

### would draw

no distinctionbetween violations 

### of statutory law and violations of regulatory law. For these 

### reasons, I 

### conclude that the jury was 

### instructed improperly anddissent fromthatpart ofthe

### majority opinionwhich concludes otherwise.

~ustice

### William E. 

### Hunt, Sr., 

### concurs in the foregoing

concurrence and dissent 

### of 

### Justice Trieweiler. /


### JusticeDecember 16, 1992 CERTIFICATEOFSERVICE Ihereby certify that the followingorderwas sentbyUnitedStates mail,prepaid,tothe following named:

KurtM.Jackson Hoyt&Blewett P.O.Box2807 Great Falls,MT 59403 MichaelJ.MilodragovichandMargaretL.Sanner Milodragovich, Dale&Dye P.O. Box4947 Missoula,MT 59806-4947

EDSMITH CLERKOFTHESUPREMECOURT STATE-OF MONTANA