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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Wells v. State (5/3/2002) sp-5559

Wells v. State (5/3/2002) sp-5559

     Notice:   This opinion is subject to 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, phone (907) 264-0608, fax (907) 264-0878,


ANDREW C. WELLS,              )
                              )    Supreme Court Nos. S-9538,
               Appellant/          )    S-9567, S-9568
               Cross-Appellee,     )
                              )    Superior Court No.
     v.                       )    3AN-97-3156 CI
               Appellees/          )    [No. 5559 - May 3, 2002]
               Cross-Appellants.   )

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, John Reese, Judge.

          Appearances:   Marcus  R.  Clapp,   John   J.
          Tiemessen,   Clapp,   Peterson   &   Stowers,
          Fairbanks,    for   Appellant/Cross-Appellee.
          Venable   Vermont,  Jr.,  Assistant  Attorney
          General,   Anchorage,   Bruce   M.   Botelho,
          Attorney General, Juneau, for Appellee/Cross-
          Appellant State of Alaska.  Timothy M. Lynch,
          Lynch    &    Blum,   PC,   Anchorage,    for
          Appellee/Cross-Appellant   Chugach   Electric
          Association, Inc.

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.

          MATTHEWS, Justice.

          Andrew  Wells was driving downhill through a  curve  on

DeArmoun  Road in Anchorage when his truck left the  roadway  and

rolled.   Wells, who had not been wearing a seatbelt, was ejected

from the truck and was later found next to some boulders that had

been  placed in the right-of-way by Chugach Electric Association,

Inc. (Chugach). Wellss injuries left him a paraplegic.

          Wells   sued   the  State  of  Alaska  for  negligently

designing  and maintaining DeArmoun Road.  He also  sued  Chugach

for  negligently  placing the boulders.  Among Wellss  complaints

against  the  State  was  his claim that the  State  should  have

installed  a guardrail at the curve in DeArmoun Road.  The  State

moved  for  partial  summary judgment on the  guardrail  and  the

negligent  design  claims and moved for a directed  verdict  that

Wellss  failure  to wear his seatbelt constituted negligence  per

se.  Wells opposed the States motions and cross-moved for summary

judgment on his claim that the State negligently failed to remove

the boulders from the clear zone alongside DeArmoun Road.

          The trial court granted partial summary judgment to the

State  on both the guardrail and the negligent design issues  and

denied Wellss cross-motion for summary judgment, holding that the

State  was immune as to clear zone requirements.  The trial court

also  denied  the  States motion for a directed  verdict  on  the

seatbelt  issue.  The parties thus proceeded to trial  on  Wellss

general negligence claim against the State and Chugach.

          At   trial,  the  court  made  several  witness-related

rulings.   The court permitted the State and Chugach  to  add  an

expert witness to their witness list and to call that witness  at

trial to rebut surprise testimony of one of Wellss experts.   The

trial  court also permitted Dr. Arthur Geuss to testify as a  lay

witness about his years of experience driving DeArmoun Road,  but

excluded a portion of Senior Captain Baird McKibbens lay  witness

testimony  offering a reconstruction of how Wellss  accident  had

occurred.  The jury ultimately concluded that although  both  the

State and Chugach had been negligent, their negligence was not  a

legal cause of Wellss injuries.

          Wells  appeals, arguing that the trial court  erred  in

granting  the  State  summary  judgment  on  the  guardrail   and

negligent  design issues, in failing to find the State  negligent

as  a  matter of law for not removing the boulders from the clear

zone,  and  in  permitting the State to amend its expert  witness

list.  The State and Chugach cross-appeal, arguing that the trial

court erred in not finding Wells negligent as a matter of law for

not  wearing his seatbelt, and in permitting Dr. Geusss testimony

while excluding the portion of Captain McKibbens.  We affirm  the


     A.   The Trial Courts Grant of the States Motion for Summary
          Judgment on the Guardrail Issue Was Proper, Because the Decision
          Whether To Install a Guardrail Is a Discretionary Decision Immune
          from Suit under AS 09.50.250(1).
          Wellss  appeal as to the States failure  to  install  a

guardrail turns upon whether the installation of a guardrail is a

discretionary act subject to immunity under AS 09.50.250.  Alaska

Statute 09.50.250(1) immunizes the State against tort suits 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 . . . .  The State is thus immune for its policy-level (or

discretionary) decisions about whether to undertake activities  .

.  .  .1   Applying de novo review,2 we reiterate here  that  the

decision  of  whether  or  not  to  install  a  guardrail  is   a

discretionary act covered by AS 09.50.250.

          Our  holding  in  Industrial  Indemnity  Co.  v.  State

decided  exactly this issue.3  In that case, the  plaintiff  sued

the  State for failing to install a protective guardrail  at  the

site  of  the  plaintiffs accident.4  We held that  the  decision

whether or not to install a guardrail was a policy decision,  and

that  an  affirmative decision to go ahead with the  installation

had to be made at the discretionary level in order to advance the

chain  of  events  to the operational stage.5  Thus,  under  this

courts precedent, the State is immune from suit for claims  based

on  its  decision  to  install  or not  to  install  guardrails.6

Accordingly, in this case the State is immune from liability  for

not installing a guardrail at the curve on DeArmoun Road.7

     B.   The   Trial  Court  Correctly  Found  that  the  States
          Responsibility To Maintain DeArmoun Road Does Not Include
          Adhering to Clear Zone Standards that Were Not in Place When the
          Road Was Designed and Constructed.
          A.   We similarly affirm the trial courts denial of Wellss motion

          for summary judgment on the issue of clear zone requirements.

While  Wells correctly asserts that the State is responsible  for

the construction and maintenance of the state highway system,8 as

well  as  for preparing and adopting uniform standard  plans  and

specifications for construction and maintenance that  conform  as

closely as possible to those of the American Association of State

Highway  and  Transportation Officials (AASHTO),9 Wells  errs  in

assuming that the clear zone requirements of the States rules  on

construction apply to its duties to maintain DeArmoun Road.

          Alaska  law makes an important distinction between  the

construction  and  maintenance  of  highways.   Construction   is

defined  to  include  construction,  reconstruction,  alteration,

improvement,  or  major  repair.  Maintenance,  by  contrast,  is

defined  as  the  preservation of each type of highway,  roadside

structure  and  facility as nearly as possible  in  its  original

condition  as constructed, or as subsequently improved,  and  the

operation   of  highway  facilities  and  services   to   provide

satisfactory and safe highways.10

          While  AASHTOs  Roadside Design Guide  and  the  States

Preconstruction  Manual  interpreting, amending,  and  augmenting

AASHTO policies both include clear zone requirements, AASHTOs and

the  States  construction and design policies  do  not  apply  to

highway  maintenance.   Because the State merely  maintained,  as

opposed  to  constructing or reconstructing  DeArmoun  Road,  the

State  is not responsible for meeting the clear zone requirements

applicable  to a new road.  Wells admits that when DeArmoun  Road

was originally designed, the concept of a clear zone was not part

of  roadway design.  The States duty to maintain the road in  its

original  condition, accordingly, did not require  it  to  add  a

clear  zone  to a road that lacked one when it was  designed  and

built.11  Thus the trial court was correct to find that the State

cannot  be held negligent for failing to provide a clear zone  on

DeArmoun Road.

     C.   The Trial Court Was Within Its Discretion in Allowing the
          State and Chugach To Amend Their Expert Witness List.
          Aside  from  the  trial courts rulings on  the  summary

judgment   motions,  Wells  also  argues  that  he  was  unfairly

prejudiced by the trial courts decision to permit the  State  and

Chugach  to  add an expert witness after the deadline for  naming

experts  had  passed.  The State and Chugach  argue  that  Wellss

expert,  Dr.  Harry Smith, did not state his belief  that  Wellss

injuries had been caused by his striking the boulders until after

the  deadline for naming experts had passed, and that  the  State

and Chugach would have been unable to adequately rebut Dr. Smiths

testimony  on that important issue unless they were permitted  to

add an expert witness.

          Dr.  Smiths report did not expressly say that Wells was

injured by striking the boulders, though it could reasonably have

been  read  to  imply that conclusion.  The States  and  Chugachs

claim of surprise was sufficiently plausible, however, so that we

are  unable  to  say  that  the court abused  its  discretion  by

allowing  them  to  supplement their witness  list  by  adding  a

witness  to rebut Dr. Smiths claims.  Further, any error in  this

respect  would be harmless, for Wells was able to depose the  new

witness  before trial and his biomechanical expert  was  able  to

respond on the theory of the new witness at the trial.

          Because we uphold the trial courts rulings upon review,

the States cross-appeal is moot.

          For the foregoing reasons the judgment is AFFIRMED.

     1    Brady v. State, 965 P.2d 1, 16 (Alaska 1998).

     2    See id. at 8 (summary judgment).

     3    669 P.2d 561 (Alaska 1983).

     4    Id. at 562.

     5    Id. at 563.

     6     See id.; see also Guerrero v. Alaska Hous. Fin. Corp.,
6  P.3d 250, 261 (Alaska 2000) (recognizing that decision whether
to  install  highway  guardrails is planning decision  for  which
state  is  immune).  The same rule applies in the federal  courts
under  the  Federal Tort Claims Act.  Rich v. United States,  119
F.3d  447,  450-52 (6th Cir. 1997) (decision to  replace  damaged
guardrail   with   guardrail  of  similar  design   shielded   by
discretionary function immunity); Rothrock v. United  States,  62
F.3d   196,   199-200  (7th  Cir.  1995)  (failure   to   require
reinstallation  of  guardrail shielded by discretionary  function
immunity); ARA Leisure Servs. v. United States, 831 F.2d 193, 195
(9th  Cir.  1987) (decision to construct road without  guardrails
shielded  by discretionary function immunity); Bowman  v.  United
States,  820  F.2d  1393, 1395 (4th Cir. 1987) (decision  not  to
install guardrails shielded by discretionary function immunity).

     7     Wells  also  argues  that the  trial  court  erred  in
granting  summary judgment to the State on the issue of negligent
design of the road.  The trial court held that the State can  not
be  liable  for the design of DeArmoun as it did not design  that
Road.   DeArmoun was designed and built by the federal government
in  the 1950s.  While the State presented uncontradicted evidence
that  DeArmoun  Road was constructed prior to  Alaska  statehood,
Wells  now  argues that DeArmoun was designed by the  territorial
road  commission  and  that  the  territorial  road  commission's
liability  for  negligently designed roads was inherited  by  the
State  under  article  XV, section 2 of the Alaska  Constitution.
Article XV, section 2 provides:

               Except  as  otherwise provided  in  this
          constitution,  all rights,  titles,  actions,
          suits,  contracts,  and liabilities  and  all
          civil,     criminal,    or     administrative
          proceedings shall continue unaffected by  the
          change  from territorial to state government,
          and the State shall be the legal successor to
          the Territory in these matters.
Whether this provision would apply to inchoate design liabilities
not accruing before statehood is an interesting question.  But as
it  was  not raised in the trial court it is waived.  See Hoffman
Constr.  Co. v. U.S. Fabrication & Erection, Inc., 32  P.3d  346,
355  (Alaska  2001)  (As a general rule,  we  will  not  consider
arguments for the first time on appeal.).  Although our precedent
allows for consideration of arguments not raised explicitly below
if  the  issue  is  1) not dependent on any new  or  controverted
facts;  2)  closely related to appellants trial court  arguments;
and  3)  could  have  been  gleaned from  the  pleadings,  Wellss
constitutional  argument  does not  fit  within  this  exception.
Hoffman,  32  P.3d at 355 (quoting McConnell v. State,  991  P.2d
178,   183  (Alaska  1999)  (internal  quotations  and  citations
omitted)).  See also Zeman v. Lufthansa German Airlines, 699 P.2d
1274, 1280 (Alaska 1985).  We have also held that waiver will not
be  found where an issue raises plain error.  Hoffman, 32 P.3d at
355  n.29.   But  the court's decision was not plain  error,  for
whether   article  XV,  section  2,  should  apply  to   inchoate
liabilities is not clear.

     8    AS 19.10.030.

     9    AS 19.10.160.

     10    AS 19.45.001(2), (10).

     11    Wells counters that the State has an unchallenged duty
to  provide  safe  highways.   He  specifically  argues  that  AS
19.45.001(10), which defines maintenance, states that  the  State
must preserve the highway (which by definition includes the right-
of-way)  to  provide  satisfactory and safe highways.    However,
Wells  takes the statutes language out of context.  The  language
that he quotes is applicable not to the preservation of highways,
but  to the operation of highway facilities and services. See  AS

          In  addition the trial court did not prevent Wells from
arguing  that  the  State failed in its duty to  safely  maintain
DeArmoun Road; the trial court specifically held that [t]he State
. . . is not immune from negligence in maintaining DeArmoun Road.
Indeed,  the  jury  found  that the  State  had  been  negligent,
although it also found that the States negligence was not a legal
cause of Wellss injury.