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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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
ANDREW C. WELLS, )
) Supreme Court Nos. S-9538,
Appellant/ ) S-9567, S-9568
Cross-Appellee, )
) Superior Court No.
v. ) 3AN-97-3156 CI
)
STATE OF ALASKA and CHUGACH ) O P I N I O N
ELECTRIC ASSOCIATION, INC., )
)
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
judgment.
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
19.45.001(10).
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.
