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Estate of Arrowwood v. Alaska (5/12/95), 894 P 2d 642
NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers
are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501; (907) 264-0607.
THE SUPREME COURT OF THE STATE OF ALASKA
ESTATE OF ADAM ARROWWOOD, by )
and through JOYCE LOEB, ) Supreme Court No. S-5667
personal representative, )
TERRY ARROWWOOD and ALICE ) Superior Court No.
ARROWWOOD, ) 3AN-90-595 Civil
) O P I N I O N
STATE OF ALASKA, ) [No. 4196 - May 12, 1995]
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage, Alaska, Peter A. Michalski, Judge.
Appearances: Michael W. Flanigan,
Walther & Flanigan, Anchorage, for
Appellants. Venable Vermont, Assistant
Attorney General, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for
Before: Moore, Chief Justice,
Rabinowitz, Matthews, Compton and Eastaugh,
This appeal arises out of a negligence action filed
against the State of Alaska by Alice Arrowwood, Terry Arrowwood,
and the estate of Adam Arrowwood (collectively, the Arrowwoods).
The Arrowwoods contend that the State's failure to sand the Parks
Highway during icy conditions caused a motor vehicle accident
which severely injured Alice Arrowwood and killed her son Adam.
After trial the jury returned a special verdict finding that the
State was not negligent. Final judgment in favor of the State
was then entered. The Arrowwoods appeal from a number of the
superior court's pretrial determinations, including a grant of
partial summary judgment in favor of the State on the issue of
the State's alleged negligent failure to close the highway, and
the exclusion of certain evidence sought to be offered by the
II. FACTS AND PROCEEDINGS
On January 23, 1988, at 3:39 p.m., Alice Arrowwood was
involved in an automobile accident at Mile 39.5 of the Parks
Highway, south of Wasilla. She lost control of her vehicle,
which spun across the center lane and struck an oncoming pickup
truck. Alice was severely injured and her son Adam, one of the
vehicle's passengers, was killed.
At the time of the accident, freezing rain had made the
Parks Highway extremely icy. Numerous other accidents occurred
at about the same time, including two on the Parks Highway within
one-half mile of the site of the Arrowwood crash, at 3:13 p.m.
and 3:40 p.m. respectively.
The Arrowwoods filed a negligence suit against the
State seeking damages for injuries to Alice Arrowwood and for the
death of Adam Arrowwood, amongst other relief. One of the
Arrowwoods' claims was that the State negligently failed to close
the Parks Highway after receiving notice of numerous accidents on
the icy road. The State moved for partial summary judgment on
the ground that the decision to keep the highway open was a
discretionary function for which the State was immune from
liability under AS 09.50.250(1), the discretionary function
exception to the Alaska Tort Claims Act. The superior court
granted the State summary judgment on this claim. The superior
court also granted a number of the State's in limine motions to
exclude certain evidence sought to be offered by the Arrowwoods.
The Arrowwoods now appeal each of these pre-trial rulings.1
A. The Applicability of AS 09.50.250(1)'s
Discretionary Function Exception to a Decision to Keep
a State Highway Open in Hazardous Conditions
The Arrowwoods contend that whether the State had a
duty to close the Parks Highway because of icy conditions
presented a jury question, and that the superior court's grant of
partial summary judgment to the State on this question was
therefore improper.2 The State responds that the decision of
whether or not to close a state highway due to inclement weather
is a discretionary function, and that the State is therefore
immune from liability under AS 09.50.250(1).
The Alaska legislature abolished the common law
doctrine of sovereign immunity by statute. AS 09.50.250.
However, immunity was retained in those cases where the action
sounds in tort and is "based upon the exercise or performance or
the failure to exercise or perform a discretionary function or
duty on the part of a state agency." AS 09.50.250(1).
In prior decisions interpreting AS 09.50.250(1), we
have held that the discretionary function exception applies only
to "government decisions entailing planning or policy formation."3
These cases distinguish between "planning level"decisions, which
fall under the exception because they involve formulation of
basic policy, and "operational level"or ministerial decisions,
which are not exempt because they involve only the implementation
or execution of that policy.4
In applying the planning level-operational level test,
consideration will be given to the reasons for granting immunity.5
We have noted that "[t]he purpose of the discretionary function
exception is to preserve the separation of powers inherent to our
form of government by recognizing that it is the function of the
state, and not the courts or private citizens, to govern."6 The
discretionary function exception also ensures that courts avoid
the re-examination of decisions which lie outside the realm of
their institutional competence.7 Additionally, this exception
gives members of the executive and legislative branches latitude
to perform their policy-making functions without the fear of
The State relies primarily on Earth Movers of
Fairbanks, Inc. v. State9 in support of its argument that its
decision to not close a road due to inclement weather is a
discretionary function. Earth Movers involved a roadbuilder's
contract action for delay damages resulting from a state
trooper's decision to lower the speed limit on a road under
construction.10 Because Earth Movers' trucks were forced to slow
down, it failed to meet its contractual deadline for completion
of the project. In that case we held that the trooper's decision
to lower the speed limit on a state highway was a discretionary
function and that both the trooper and the State were therefore
immune from suit for the resulting consequences.11
We agree that Earth Movers controls resolution of the
superior court's grant of partial summary judgment. In both
cases, the state officials involved were required to evaluate the
particular road conditions to determine whether a hazard existed
sufficient to warrant additional traffic controls. Furthermore,
in both cases the relevant statutory and administrative code
provisions do not require officials to act to carry out a
predetermined policy. Rather the language of these provisions
delegates to officials on the scene the authority to act if their
evaluation of road conditions leads them to conclude that such
action is necessary.12 We believe that such a decision could not
be classified as merely ministerial or operational.
The policies supporting the discretionary function
exception also suggest that governmental immunity is appropriate.
If we ruled otherwise, the result would be that state officials
would be forced to close state highways upon receiving notice of
the first accident which resulted from adverse weather and road
conditions, or else risk incurring liability for failure to do
so. Given the long winters and harsh weather conditions which
occur throughout most of Alaska, such a decision would make road
travel at best unreliable. We therefore hold that the State's
refusal to close the Parks Highway was a planning-level decision
which falls within the ambit of the discretionary function
exception provided for in AS 09.50.250(1). Accordingly, the
State is immune from liability and the superior court properly
granted partial summary judgment to the State on this issue.
B. The Exclusion of Evidence Pertaining to Budget
Reductions for Road Maintenance
The Arrowwoods next contend that the superior court
abused its discretion by excluding evidence relating to the
effect of reductions in DOT's budget upon the level of road
maintenance in the Palmer-Wasilla region.13 The Arrowwoods argue
that this evidence is "relevant to show the reasonableness of the
state's road maintenance program, and whether sufficient
resources were being allocated to that purpose to perform the
maintenance program in a non-negligent fashion."14
It is well established that both legislative
appropriations and executive department budget decisions are
discretionary functions immune from judicial inquiry. This is
because both concern the allocation of scarce resources between
and among competing policy measures. For example, in Freeman v.
State15 we held that the State was immune from liability for not
allocating sufficient funds to provide dust control on the Dalton
Highway. In Freeman, we reasoned that "[t]he decision appears to
be one involving such basic policy factors as the cost of such a
program, alternative uses for the money that would be needed for
such a program, and the physical and environmental detriments
which would be inherent in the several dust control alternatives
under consideration."16 Similarly, the proper focus of the
present case is not the budgetary decisions of the legislature,
or the DOT's allocations of resources to the Palmer Maintenance
District,17 but rather what the Palmer Maintenance District did
with the resources that it received.
The Arrowwoods present no way to distinguish the effect
of the budget decisions here from the effect of budget decisions
in any other tort claim where the State is a defendant. Thus,
the general rule placing budget decisions among immune
discretionary functions applies here. Because the Arrowwoods
could not premise a finding of negligence on an immune decision,
the superior court could properly exclude their evidence
regarding budget cuts on the grounds that this evidence was not
relevant.18 See Alaska R. Evid. 402.
C. Exclusion of the Interview with Richard Law
The Arrowwoods' third assignment of error is that the
superior court abused its discretion when it granted the State's
in limine motion excluding the transcript of a recorded interview
of Richard Law.19 The Arrowwoods also argue that the superior
court erred by not permitting their experts to rely on the
Law was a local resident who monitored police radio
transmissions on the day of the accident.20 In the interview, Law
stated that he had driven on the Parks Highway during the day and
had observed that there were portions covered by "glare ice."
Additionally, Law stated that he seems to recall hearing two
calls on the radio for sand trucks before the time of the
accident. Finally, after the accident Law apparently heard calls
for sand trucks and he actually saw the trucks approximately
thirty minutes 3later while going to pick up his daughter from
school. The Arrowwoods' highway maintenance and accident
reconstruction experts intended to use the interview to "help . .
. evaluate the condition of the roads [on the day of the
accident.]" These experts presumably could also use the
interview to help them determine what actions the State took to
mitigate the hazardous conditions on the Parks Highway and when
these actions were taken relative to the accident.
Despite the fact that the interview transcript is
hearsay,21 the Arrowwoods argue that it is admissible pursuant to
Alaska Rules of Evidence 703 and 705.22 Evidence Rule 703 states:
The facts or data in the particular
case upon which an expert bases an opinion or
inference may be those perceived by or made
known to the expert at or before the hearing.
Facts or data need not be admissible in
evidence, but must be of a type reasonably
relied upon by experts in the particular
field in forming opinions or inferences upon
Although Rule 703 is meant to expand the breadth of
information upon which an expert witness may rely, it is not
intended merely to provide a conduit for the admission of
otherwise inadmissible evidence.24 The rule instead recognizes
that part and parcel of an individual obtaining expertise in a
particular subject area is the ability to distinguish between
reliable and unreliable data on which to base his or her
conclusion. Thus, the rule accords experts a degree of deference
in determining whether specific facts or data are "of a type
reasonably relied upon by experts in the particular field."
However, as one treatise notes, "the degree of deference that is
appropriate varies by subject matter and underlying basis.
Closer judicial scrutiny is appropriate, for example, where [the]
adequacy [of the information relied upon by the expert] relates
to the credibility of human sources who report conventional
factual information."25 This is not because the expert lacks the
ability to distinguish between reliable and unreliable
information but "[r]ather . . . [because] courts too are skilled
and experienced in the task and should be expected to look
closely at reliance issues."26
As mentioned above, the interview transcript at issue
in the present case contains little more than one witness'
observations that (1) the Parks Highway was icy on the day of the
accident and (2) he did not hear any calls for sanders on the
police scanner. These observations do not require technical
expertise to be understood by a trier of fact. Thus, the trial
court was just as capable of evaluating the reliability of this
evidence as were the Arrowwoods' experts. Furthermore, upon
reviewing the interview transcript we conclude that the
statements contained therein could have reasonably been viewed by
the superior court as unreliable for the purpose of evaluating
the road conditions at the time and place of the accident.27
Accordingly, we hold that the superior court did not abuse its
discretion in concluding that it was not reasonable for the
experts to rely on the Law transcript.28
Additionally, we note that even if the superior court
abused its discretion, its failure to admit the Law transcript
would not require reversal of the jury's special verdict. A
party appealing the exclusion of evidence must show not only that
such exclusion was improper, but that it resulted in prejudice to
that party.29 In the present case, the Arrowwoods have not shown
that they have been prejudiced by the exclusion of the Law
testimony. Neither of the Arrowwoods' experts was prevented from
testifying, and their opinions at trial were the same as those
they gave in depositions taken prior to the motion to exclude the
D. Exclusion of the Testimony of Chris Crouch
Finally, the Arrowwoods contend that the superior court
abused its discretion in excluding the testimony of Chris Crouch.
Crouch operated a towing company and snow plow business in the
vicinity of the accident.30 In its oral ruling on the in limine
motion, the superior court excluded Crouch's opinion testimony as
to "the quality of the response of the State of Alaska to
inclement weather conditions in the Mat-Su valley."31
Alaska Evidence Rule 701 governs the admissibility of
opinion testimony by lay witnesses:
If the witness is not testifying as
an expert, his testimony in the form of
opinions or inferences is limited to those
opinions or inferences which are (a)
rationally based on the perception of the
witness and (b) helpful to a clear
understanding of his testimony or the
determination of a fact in issue.
The Arrowwoods argue that because Crouch ran a towing and snow
plowing business, and because she regularly monitored a police
scanner radio in the course of this business, she was able to
judge the State's normal response time to reports of hazardous
According to the instructions given to the jury, the
Arrowwoods had to prove the following elements in order to
demonstrate that the State was negligent: (1) that at the time
and place of the crash the highway was in a "dangerous
condition"; (2) that the dangerous condition caused the crash;
(3) that the accident was a foreseeable result of the dangerous
condition; and (4) that the State either had notice of the
condition and failed to act, or failed to act reasonably in
maintaining the road.32 Crouch had no recollection regarding the
condition of the Parks Highway on the day of the accident. Thus,
if Crouch's opinion was helpful to a determination of any fact in
issue, it must have been on the fourth element (i.e., the
reasonableness of the State's maintenance efforts).
However, the use of Crouch's testimony for this purpose
is problematic. The Arrowwoods have never challenged the State's
assertion that Crouch had no firsthand knowledge of the State's
road maintenance procedures or the resources available for this
purpose. Her opinion is instead based on what she has heard over
the police scanner combined with her experience on the roads in
the course of her business.33 We believe that this limited
information as to the State's highway maintenance practices is
not sufficient to satisfy the requirements of Rule 701(a). An
evaluation of the reasonableness of the State's efforts must
include consideration of numerous other factors such as the
resources which are available, the physical area which must be
maintained, and the actual procedures used to allocate those
resources.34 Accordingly, we conclude that the superior court
did not abuse its discretion in applying Rule 701 to exclude
Crouch's lay opinion testimony even as to this issue.
Nor does Crouch's testimony satisfy the requirement of
Rule 701(b) -- that it be relevant to a fact in issue. To
prevail in this action, it is not sufficient for the Arrowwoods
to show that the State was sometimes negligent in its maintenance
of the Parks Highway. Instead, the relevant inquiry is whether
the State was negligent in failing to reasonably maintain the
area around mile 39.5 of the Parks Highway on the date of the
Arrowwoods' accident. However, as noted above, Ms. Crouch has no
recollection of the road conditions or the State's actions on the
day of the accident.35
The superior court did not err in granting the State's
motion for partial summary judgment as to whether the failure to
close the Parks Highway was a discretionary function for which
the State is immune from liability. Further, the superior court
did not abuse its discretion in excluding evidence of budget
reductions for highway maintenance, the interview of Richard Law,
or the testimony of Chris Crouch. We therefore AFFIRM the
superior court's judgment.
1 A jury trial was held on the Arrowwoods' remaining
claims in February and March of 1993.
2 When reviewing a superior court's grant of summary
judgment, this court determines whether a genuine issue of
material fact exists and whether the moving party is entitled to
judgment as a matter of law. Zeman v. Lufthansa German Airlines,
699 P.2d 1274, 1280 (Alaska 1985); Alaska R. Civ. P. 56(c). This
court draws all reasonable factual inferences from the proffered
evidence in favor of the non-moving party. Zeman, 699 P.2d at
3 Industrial Indem. Co. v. State, 669 P.2d 561, 563
(Alaska 1983) (citations omitted).
4 See, e.g., Industrial Indem. Co., 669 P.2d at 562-63;
Japan Air Lines Co., Ltd. v. State, 628 P.2d 934, 936 (Alaska
1981); State v. Abbott, 498 P.2d 712, 718-22 (Alaska 1972).
5 Division of Corrections v. Neakok, 721 P.2d 1121, 1133
(Alaska 1986); see also Industrial Indem. Co., 669 P.2d at 563;
State v. I'Anson, 529 P.2d 188, 193 (Alaska 1974).
6 Japan Air Lines, 628 P.2d at 936; see also Industrial
Indem. Co., 669 P.2d at 563 ("[T]he courts of Alaska should not
attempt to balance the detailed and competing elements of
legislative or executive decisions.").
7 Industrial Indem. Co., 669 P.2d at 563 ("The judicial
branch lacks the fact-finding ability of the legislature, and the
special expertise of the executive departments.").
8 See Neakok, 721 P.2d at 1133; see also Haddock v. New
York, 553 N.E.2d 987, 991 (N.Y. 1990) ("[T]his immunity reflects
a value judgment that -- despite injury to a member of the public
-- the broader interest in having government officers and
employees free to exercise judgment and discretion in their
official functions, unhampered by fear of second-guessing and
retaliatory lawsuits, outweighs the benefits to be had from
imposing liability for that injury.").
9 691 P.2d 281 (Alaska 1984).
10 The trooper was responding to complaints that the
contractor's trucks were causing a hazard by "stirring up
excessive dust and causing rocks to hit the windshields of other
drivers." Earth Movers, 691 P.2d at 282.
11 Id. at 284.
12 Alaska Statute 19.10.100 grants the State Department of
Transportation and Public Facilities (DOT) discretion to close
When it is necessary to exclude
traffic from any portion of a highway, the
department may close that portion of the
highway by posting in a conspicuous manner,
at each end of the portion closed, suitable
signs warning the public that the road is
closed under authority of law, and by
erecting suitable obstructions.
(Emphasis added.) Likewise, 17 AAC 25.100(a) states that DOT
"may prohibit the operation of vehicles upon any highway . . .
whenever it is deemed necessary by the commissioner in the
interests of safety to the traveling public." (Emphasis added.)
The relevant regulations in Earth Movers are reprinted
at 691 P.2d at 283 n.1. Cf. Abbott, 498 P.2d at 722 n.30 (the
presence of detailed standard operating procedures as to when and
how to sand highways buttressed the court's conclusion that this
decision was operational rather than policy-making).
13 This court reviews the superior court's decisions on
the admissibility of evidence for an abuse of discretion.
Hutchins v. Schwartz, 724 P.2d 1194, 1197 (Alaska 1986).
14 In Abbott we held that "[o]nce the basic decision to
maintain [a] highway in a safe condition throughout the winter is
reached, the state should not be given discretion to do so
negligently." Abbott, 498 P.2d at 722. Thus, the Arrowwoods'
claim that the State negligently maintained the Parks Highway was
not barred by AS 09.50.250(1).
15 705 P.2d 918 (Alaska 1985).
16 Id. at 920; see also Industrial Indem. Co., 669 P.2d at
564-65; Wainscott v. State, 642 P.2d 1355, 1357 n.6 (Alaska
17 DOT allots funds received from the Legislature to
regions and projects according to its long-range plans. See AS
18 In the alternative, the Arrowwoods argue that one piece
of evidence, an alleged statement by a state trooper that their
son "died because of budget cuts,"was relevant to the State's
contention at trial that Alice Arrowwood caused the accident.
However, the jury's special verdict that the State was not
negligent rendered moot any issue as to Alice Arrowwood's
comparative negligence. Furthermore, the superior court did not
abuse its discretion in determining that the prejudicial effect
of this evidence would outweigh its probative value. See Alaska
R. Evid. 403.
19 Because the parties failed to designate that portion of
the transcript at which the superior court ruled on the Law
motion, it is impossible for us to determine the precise
reasoning on which Judge Michalski relied. However, we have held
that "[t]his court . . . may affirm a judgment of the superior
court on different grounds than those advanced by the superior
court and even on grounds not raised by the parties in the
superior court." Native Village of Eyak v. GC Contractors, 658
P.2d 756, 758 (Alaska 1983). Therefore, we choose in this
instance to apply the Alaska Rules of Evidence de novo to
determine whether the superior court's ruling should be upheld.
20 According to an affidavit provided by Law, he
occasionally plowed snow during the winter and monitored a police
scanner to determine when he would be called.
21 The interview transcript is an out of court statement
offered for the truth of the matter asserted. Alaska R. Evid.
22 For an example of a case where this court upheld the
superior court's decision to allow an expert witness to rely on
otherwise inadmissible hearsay evidence, see Norris v. Gatts, 738
P.2d 344, 351 (Alaska 1987).
23 Evidence Rule 705(a) provides in pertinent part that
"[t]he expert may . . . disclose on direct examination, or be
required to disclose on cross-examination, the underlying facts
or data [on which they rely]." The only exception to this rule
is found in Evidence Rule 705(c), which allows the trial judge to
exclude the underlying facts or data if their probative value is
outweighed by potential prejudice. Thus, subject to the 705(c)
balancing test, if the Arrowwoods' experts should have been
permitted to rely on the transcript in forming their opinion,
they should also have been permitted to introduce the transcript
24 United States v. Scrima, 819 F.2d 996, 1002 (11th Cir.
1987) ("Rule 703 . . . is not an open door to all inadmissible
evidence disguised as expert opinion."); see also Fed. R. Evid.
703 advisory committee's note (warning that the "enlargement of
permissible data may tend to break down the rules of exclusion
In interpreting Alaska Evidence Rule 703, we are guided
by cases and commentary interpreting Federal Rule of Evidence
703, which, with the exception of some minor syntactic
differences, is the same as its Alaska counterpart.
25 3 Christopher B. Mueller and Laird C. Kirkpatrick,
Federal Evidence 357, at 680 (2d ed. 1994).
27 As mentioned above, the Arrowwoods' experts intended to
use the Law transcript to evaluate driving conditions on the
Parks Highway on the day of the accident. However, there were
serious deficiencies in its use for this purpose. Although Law
had driven on the highway earlier in the day, the relevant issue
for purposes of this case is the condition at mile 39.5 of the
highway at the time of the accident. Law's statements that the
highway was covered with glare ice were based on observations
made at 7:00 a.m., approximately eight and a half hours before
the time of the accident.
The next time Law was on the highway, "shortly after
the accident,"he drove past the accident scene. He then saw the
sanding truck ahead of him. However, this observation does not
demonstrate whether the stretch of highway had been sanded during
the interim period, nor would it accord the experts any insight
into what the condition of the roads were prior to being sanded.
Finally, with regard to his statements about what he
heard on the police scanner, we hold that the superior court
could conclude that no expert could reasonably rely on such
testimony to determine what measures were taken by the DOT.
First, even if this was a reliable method to determine whether
the sanders were called out, it is impossible to determine from
the interview transcript whether Law was listening during the
whole day and how closely he was paying attention. Second,
reliance on this secondhand source of information is simply not
reasonable in light of the existence of DOT personnel with
firsthand knowledge of whether or not sanders were present on the
Parks Highway. For example, Ron Cole, a DOT employee, testified
at his deposition that he was on the Parks highway driving a
sander during his shift which lasted from 7:00 a.m. to 3:00 p.m.
28 The Advisory Committee's Notes to Federal Rule of
Evidence 703 state that "[t]he language [of Rule 703] would not
warrant admitting in evidence the opinion of an _accidentologist_
as to the point of impact in an automobile collision based on
statements of bystanders, since [the] requirement [that the facts
or data _be of a type reasonably relied upon by experts in the
particular field_] is not satisfied."(Emphasis added.) See also
Faries v. Atlas Truck Body Mfg. Co., 797 F.2d 619, 624 (8th Cir.
29 Alaska R. Civ. P. 61; Korean Air Lines Co., Ltd. v.
State, 779 P.2d 333, 339-40 (Alaska 1989).
30 Even if we determined that Crouch should have been
permitted to testify, the Arrowwoods have failed to carry their
burden under Alaska Civil Rule 61 of showing that they have been
prejudiced. The party alleging that the failure to admit
evidence was prejudicial must designate those portions of the
record, including the trial transcript, which are necessary for
this court to properly review the issue. Alaska R. App. P.
210(b)(1); Zerbinos v. Lewis, 394 P.2d 886, 890 (Alaska 1964).
In light of the Arrowwoods' failure to designate the trial
transcripts as part of the record on appeal we are unable to
conclude that they have been prejudiced and must therefore uphold
the jury's verdict.
31 In its oral ruling, the superior court specifically
limited its exclusion of the Crouch testimony "to the things that
are being sought to be kept out." The court further stated that
"there may be some testimony from . . . Crouch that will come
in." Thus, the Arrowwoods were not prevented from having Crouch
testify as to matters other than those addressed in the State's
Because the Arrowwoods failed to call Crouch as a
witness or otherwise make an offer of proof at trial, they have
waived any claim regarding the exclusion of testimony on subjects
other than "her opinion about the quality of the response of the
State of Alaska to inclement weather conditions in the Mat-Su
valley." Evidence Rule 103(a)(2); Adamson v. University of
Alaska, 819 P.2d 886, 889-90 (Alaska 1991). On appeal, we
therefore limit our review to the question of whether Crouch's
lay opinion testimony was properly excluded.
32 With regard to the final element, the reasonableness of
the State's efforts, two alternative instructions were given to
the jury. Jury Instruction 13 reads:
Negligence is the failure to use reasonable
care. Reasonable care is that amount of care that
a reasonably prudent person would use under
similar circumstances. Negligence may consist of
doing something which a reasonably prudent person
would not do, or it may consist of failing to do
something which a reasonably prudent person would
The jury was also given a negligence per se instruction
based upon DOT Standard Operating Procedure 4301-6. This
Sanding crews should be dispatched at the
first indication that traffic is having
difficulty, with particular attention given to
intersections and grades. Maintenance crews in
the outlying areas should keep steep grades and
sharp curves well sanded, working overtime and at
night if conditions warrant. Maintenance foremen
must be alert to this condition and plan
accordingly, and the employees should be
instructed to report for duty when inclement
weather threatens. Sanding operations should
continue as long as conditions warrant. First
priority should be given to hills, intersections
and curves. In the vicinity of the more populated
areas, sanding crews should be dispatched in
sufficient time to provide protection for the
early morning and evening traffic proceeding to
and from work and school.
33 The Arrowwoods state in their brief that they intended
to have Crouch testify as to the following: (1) that the State
typically does not do winter maintenance on the Parks Highway
until the state troopers request such action; (2) that it takes a
long time for DOT to respond to state troopers' calls for highway
maintenance assistance; and (3) that an intersection close to the
accident site was one of the most dangerous in the area.
34 The use of police scanner calls as a means to gauge the
State's maintenance efforts has the obvious drawback of providing
only a limited view of what the State may or may not be doing in
this regard. This is because the use of this data necessarily
excludes any information regarding the routine dispatch of
sanding trucks where drivers are given instructions personally
rather than over a two-way radio.
35 Nor would Crouch's testimony prove that the State was
negligent per se by violating DOT Standard Operating Procedure
4301-6. As discussed supra note 32, this regulation requires
that "[s]anding crews should be dispatched at the first
indication that traffic is having difficulty, with particular
attention given to intersections and grades." However, by
responding to state troopers' calls, the State is complying with
the requirements of the regulation, not violating it.