31 Wash. App. 21 | Wash. Ct. App. | 1982
This case results from a car accident which occurred within an hour and at the same place as another accident on the same highway. On August 19, 1977, on Highway 97, approximately 10 miles north of Goldendale, there was a collision between a logging truck and a Pontiac automobile which resulted in the death of a passenger in the car. The state trooper who first arrived appointed two bystanders to direct traffic around the accident scene. He then called the Klickitat County sheriffs office for additional help, and gave first aid to the second passenger in the car. Shortly thereafter, three employees of the Department of Transportation arrived to help—Atkins, the supervisor, directed one, Cooper, to maintain traffic control and protect the scene, and the other, Keep, to go north of the scene, up a hill, but to stay close enough to Cooper to maintain eye contact in order to direct traffic. Keep was then about 750 feet north of Cooper and could see a car 900, or a truck 1,200, feet north. Keep then turned on the rotobeam and 4-way flashers on his truck. He was not wearing a reflective or colored vest and did not use flares or reflectorized signs at this time (10:30 a.m.) in his efforts to control traffic.
Approximately 1 hour after the first accident, and while traffic was being routed through the scene, a milk truck belonging to the defendant C. D. Amende Co. (Amende) and driven by Harrington was traveling south on Highway 97 at about 50 miles per hour and following 300 feet behind a car. When this car's driver applied the brakes, the truck's driver also applied the brakes and a few seconds later,
Cooper, who was stationed at the south end of the accident zone, was directing traffic around the scene in the southbound lane using a stop/slow paddle. When Keep stopped southbound traffic, he allowed northbound traffic to proceed. After Cooper had started traffic through his position, he saw the milk truck approaching Keep. Plaintiff Anthony's vehicle was second in a line allowed through by Cooper; the first car pulled off the road as the milk truck approached it. The milk truck first hit the Pontiac, damaged in the initial accident, and then veered right and hit plaintiff Anthony's pickup and another vehicle behind it.
Anthony was injured in the accident and his pickup destroyed. He sued both Amende and the State. Each defendant cross-claimed against the other for damages. The jury found each defendant 50 percent negligent and that the negligence of each caused the other's damage. It awarded Anthony $172,000 against both defendants and awarded neither defendant any damages. Amende moved for a new trial; this motion was denied and judgment was entered for plaintiff. Both Amende and the State appeal.
State's Contentions
The State first argues that instructions Nos. 26,
We have been unable to discover, nor are we cited, any cases which directly reach the issue of the standard of care required by police and other state employees when directing traffic around or through an accident scene. We hold the trial court erred in instructing the jury the standard was one of more than ordinary care.
In ordinary circumstances, the responsibility of the police
In its instruction No. 30, the court imposed on the State a "higher standard of care". This implies there was a special standard which should apply. We believe, instead, that the standard is still that of ordinary care,
determined by balancing the risk, in the light of the social value of the interest threatened, and the probability and extent of the harm, against the value of the interest which the actor is seeking to protect, and the expedience of the course pursued.
W. Prosser, Torts § 31, at 149 (4th ed. 1971). Where there is a greater possibility of danger, of course, an increased amount of care is required. Morehouse v. Everett, 141 Wash. 399, 414, 252 P. 157, 58 A.L.R. 1482 (1926). This is not the same as imposing a higher standard; the standard of care remains the same, while the amount changes to meet each specific situation. Ulve v. Raymond, 51 Wn.2d 241, 317 P.2d 908 (1957); Hubbard v. Embassy Theatre Corp., 196 Wash. 155, 82 P.2d 153 (1938); W. Prosser, Torts § 34, at 181. Whether the defendant has acted sufficiently to meet this amount is a question of fact for the jury.
Mason v. Bitton, 85 Wn.2d 321, 534 P.2d 1360 (1975),
This case is also analogous to those involving the State's duty to maintain the public highways. In Provins v. Bevis, 70 Wn.2d 131, 138, 422 P.2d 505 (1967), the court held a county is obligated to exercise ordinary care in the repair and maintenance of the highways, including
the responsibility to post adequate and appropriate warning signs . . . where the situation, to the county's actual or constructive knowledge, is inherently dangerous or of such a character as to mislead a traveler exercising reasonable care.
See also Stewart v. State, 92 Wn.2d 285, 597 P.2d 101 (1979); Owens v. Seattle, 49 Wn.2d 187, 299 P.2d 560, 61 A.L.R.2d 417 (1956) (municipalities); Meabon v. State, 1 Wn. App. 824, 463 P.2d 789 (1970) (state). The question of the adequacy and appropriateness of such warnings must be answered by a jury.
Thus, the trial court erred in instructing the jury that the State had a higher burden of care. The burden on the State is still one of ordinary care under the circumstances, although the acts taken by the trained state employees in warning oncoming traffic and in directing it around the scene might of necessity vary according to the circum
We therefore reverse and remand to the trial court for a new trial on the issue of liability only, as there has been no error assigned to the proof or extent of Anthony's damages. France v. Peck, 71 Wn.2d 592, 599, 430 P.2d 513 (1967).
As between plaintiff Anthony and defendant Amende, the amount of Anthony's damages and Amende's liability to Anthony has been decided and is not subject to retrial. What is subject to retrial is the liability of the State as regards Amende and the plaintiff.
Pursuant to RCW 2.06.040, the remaining contentions and the court's answers to those contentions, having no precedential value, will not be published.
McInturff, C.J., and Munson, J., concur.
Reconsideration denied March 22, 1982.
Review denied by Supreme Court May 21, 1982.
Instruction No. 26 reads:
"A statute provides:
"Upon all roadways of sufficient width a vehicle shall be driven upon the right half of the roadway, except as follows:
"When an obstruction exists making it necessary to drive to the left of the*24 center of the highway; provided, any person so doing shall yield the right of way to all vehicles traveling in the proper direction upon the unobstructed portion of the highway within such distance as to constitute an immediate hazard.n
This instruction is based on RCW 46.61.100(l)(b).
Instruction No. 29 reads:
"I instruct you that under all circumstances, policemen and highway officials are required to exercise due care, even in the performance of their duty, they in some circumstances may be exempted from strict compliance with traffic codes, but that work-necessitated exemption does not allow them to exercise less than due care, and where they are violating the law in the exercise of their duty they must exercise more than ordinary care for the protection of persons using the highway." (Italics ours.)
Instruction No. 30 reads:
"The State of Washington in directing a motorist to drive on the wrong side of the roadway has the burden of justifying such action by showing that it exercised a higher standard of care than when directing such motorist to proceed in their [sic] normal or assigned lane of traffic." (Italics ours.)