Gavica v. Hanson

BAKES, Justice,

concurring in Part I and dissenting in Part II:

I am compelled to dissent from Part II of the Court’s opinion. The district court properly entered summary judgment in favor of the defendant respondent State of Idaho. The record before the court on the defendant state’s motion for summary judgment indicates plainly that the state’s failure to erect signs on I-15W warning drivers of low visibility conditions existing adjacent to the J. R. Simplot Co. and FMC Corporation facilities was, even if negligent, not a proximate cause of the collision which caused the Gavicas’ deaths.

Where the record before the trial court shows no genuine issue of material fact, entry of summary judgment is proper. Although the pleadings, depositions and affidavits must be construed most favorably to the party opposing the motion for summary judgment, Farmers Insurance Co. v. Brown, 97 Idaho 380 , 544 P.2d 1150 (1976), a mere scintilla of evidence will not create a genuine issue of fact. Jephson v. Ambuel, 93 Idaho 790 , 473 P.2d 932 (1970). The record before the trial court on motion for summary judgment supports his conclusion that the failure of the state to post warning signs in the area adjacent to the two manufacturing plants was not a contributing factor to the collision.

Defendant Hansen, the truck driver, testified in his deposition that he had traveled the section of highway upon which the accident occurred more than fifty times and that he was very familiar with that piece of road. Hansen testified that he had in the past encountered fog conditions on I-15W in the area of the Simplot and FMC manufacturing plants, although those conditions were not as severe as those which existed on December 22, 1974. More important for purposes of considering the state’s motion for summary judgment, Hansen testified that he observed the smog or fog bank lying across the highway on December 22, 1974, well before entering into it. Under questioning by the attorneys for the various parties in the case at his deposition, Hansen presented the following testimony:

“Q. How far did you proceed from the time you initially slowed down or began slowing down until the impact of the collision?

“A. The distance you say?

“Q. Yes.

“A. Oh, I couldn’t give you the number of feet because you couldn’t — I couldn’t even see the overhead bridge.

“Q. When you say couldn’t see the overhead bridge, you’re referring to the overpass directly north of the industrial plants?

“A. Yes.

“Q. You don’t know what number that is or what off ramp that is?

“A. Fifty-eight.

“Q. Now, what is the general condition of the highway as you proceed eastbound with regard to being level, being an upgrade or downgrade from the point of the overpass at Exit 58 to the point of the collision?

“A. There is a downgrade.

“Q. And what was the condition of the visibility? You say you couldn’t see the overpass. What could you see at that point?

“A. I could see the white lines right beside the truck. That’s all I could see.

“Q. You had almost no forward visibility?

“A. That’s correct.

*67 “Q. When you arrived at Exit 58, then what did you observe as to visibility on the roadway ahead of you going east, we’ll call it?

“A. Well, some smoke going across the road.

“Q. Was there very much smoke in that area or was — well, was there very much smoke in that area?

“A. Yes.

“Q. When was it that your visibility became quite limited?

“A. Underneath the overpass.

“Q. Underneath the overpass?

“A. Well, in the overpass area.

“Q. Well, now, when we talk about the overpass area, we are speaking in pretty general language. Would it be down more toward the bridge across the Portneuf or just what was it, if you could describe it to me?

“A. Well, pretty much in the overpass area.

“Q. Would you say that it was any less dense in the overpass area by Exit 58 than it was down toward the bridge?

“A. Well, the bridge itself was so thick I couldn’t even see it.

“Q. What was your visibility from Exit 58, then, down to the point where the accident happened?

“A. I followed the white lines along the side of the truck.

“Q. You know where Exit 58 is, don’t you?

“A. Yes.

“Q. You were aware on this particular day when you passed Exit 58, weren’t you?

“A. Not the exact position of Exit 58, no.

“Q. Why weren’t you aware of the exact position of Exit 58?

“A. It was covered with smoke.

“Q. The exit itself?

“A. Yes..

“Q. Your testimony, then, to me at this time is that the fog, whatever it was, was so dense at Exit 58 or in that area that you could not see it?

“A. That’s correct.

“Q. And did it continue to be that dense clear down to the Portneuf River bridge?

“A. It was letting up at the Portneuf bridge.

“Q. What do you mean by letting up?

“A. Not quite as dense.

“Q. Yet at this point, as I have understood what you have told me, was that you were driving by observing the white lines along the edge of the roadway?

“A. That is correct.

“Q. And that there was no forward visibility as far as you were concerned? “MR. SWEET: That’s not his testimony.

“Q. What is your testimony?

“A. I followed the white lines.

“Q. Why did you follow the white lines?

“A. So I could stay on the road.

“Q. Was that because you couldn’t see ahead of you?

“A. That’s correct.”

The record indicates that the distance between the Exit 58 overpass and the point of impact was approximately 400 yards.

In the record before the district court on the summary judgment motions was also a deposition by Richard Alexander who was driving on I-15W in the area of the accident just prior to the collision. Alexander overtook and passed the Gavica automobile in the fog bank and shortly thereafter observed the Gavica automobile emerging from the cloud and being pushed off the road by defendant Hansen’s semi-truck. With respect to his ability to observe the fog bank prior to entering it, Alexander testified as follows:

“Q. When is the first time that you remember seeing the actual fog? How far were you away? Do you have any idea?

“A. Two hundred to five hundred yards from it maybe as a guess.

“Q. What was your approximate speed at this time?

“A. I was going the speed limit, probably 50 to 55.

*68 “Q. Okay. Did you react in any way when you saw this fog bank?

“A. Yes. I proceeded cautiously into it.

“Q. Proceeding cautiously, do you mean that you slowed down?

“A. Yes.

“Q. Okay. Do you remember what speed that you finally got to?

“A. I was either stopped or going very slowly in the fog.

“Q. When you first saw the fog bank before you entered it, how far were you away from it when you were traveling the speed limit, 50 to 55?

“A. I would say that I was maybe 400 yards, 500 yards. That’s—

“Q. Would you have already at that time gone under the overpass?

“A. I think if I hadn’t have gone under the overpass, I don’t think I could have seen the river bridge or the area near the river bridge ’cause there’s a hill there I believe or a curve or—

“Q. So you feel like—

“A. And so apparently there was some distance where I came into the open to where I could see the river, the area near the bridge. When I came to a point, I had enough time to slow down and — I saw it coming some distance, three, four hundred yards maybe.

“Q. Okay. Now, from the time you first saw the fog near the Portneuf River until the time you entered it, did you have enough time to slow down?

“A. Yes.

“Q. You didn’t feel threatened in any way in not being able to slow down adequately?

“A. No. I had time to slow down for it. I did slow down for it.

“Q. When you first encountered the Gavica vehicle, did you sense any danger that you were going to somehow collide with that vehicle?

“A. I don’t believe so. I did stop in time to where I wasn’t afraid of hitting them. It scared me thinking, or scares me now even, what could have happened had I not stopped in time. But I did.

“Q. Okay. And you felt in control at all times?

“A. Yes. I was in control of the Gavica vehicle or of not hitting the Gavica vehicle I felt.”

In another deposition before the court, David Terry, a detective for the Bannock County sheriff’s office in Pocatello and the first law enforcement officer to arrive at the accident scene, testified that at the time he arrived at the scene the west edge of the fog bank began rather abruptly near the Portneuf River and was clearly visible from the Exit 58 interchange, from which Terry entered the interstate highway, several hundred yards from the reduced visibility area.

“Q. (By Mr. Gallafent) Going east on the on ramp, as you turned east onto the on ramp you could see the fog bank?

“A. Yes, you could.

“Q. Did you go at normal speed on the on ramp, then, what I mean is speed for clear conditions?

“A. Yes, I did.

“Q. Then when you got to the fog bank you immediately slowed down to ten or fifteen miles per hour; is that right?

“A. Yes, I did, for my own safety.”

Terry’s deposition reflects also the very dense character of the fog which lay across the roadway.

“A. Well, I first run into it just, oh, I don’t know how many feet exactly this side of the bridge, I slowed and followed close to the guardrail, proceeded with caution or however, along watching the guardrail, concrete bridge, going across that, which I didn’t have anything to follow from the other side. Following slowly along the interstate, say, ten or fifteen miles an hour again, we have a turnoff or a crossover which is used strictly by emergency vehicles, vice versa, on all of your interstates. Just before approaching that it started to break up *69 and off to my right I could see the accident scene at that point. I am not sure how many feet that is from the bridge to that crossover.”

The district court properly concluded that, as a matter of law, the defendant State of Idaho’s failure to erect signals warning motorists of reduced visibility was not a proximate cause of the accident. The fog or smog bank was clearly visible to approaching drivers from a distance sufficient to enable them to slow to a safe speed prior to entering into the bank. Defendant Hansen’s deposition indicates that he in fact did see the dense cloud of vapor enveloping the roadway some several hundred yards before the site of his collision with the Gavica automobile. Munson v. State Dept. of Highways, 96 Idaho 529 , 531 P.2d 1174 (1975), is not distinguishable on any relevant basis, as the majority asserts, and amply supports the district court’s summary judgment granted in the defendant State of Idaho’s favor. This Court held in Munson that “[t]he driver of an automobile is held to have notice of that which is plainly visible on the highway before him.” 96 Idaho at 531 , 531 P.2d at 1176-77 . As in Munson , signs on I-15W would not have proven more visible than the danger on the road itself.

The majority apparently concedes that the presence of warning markers would not have provided Hansen with any greater awareness of the hazard than he did have. The majority, however, ante at 866, somehow finds it significant that the record evidences no familiarity with the road on the part of the Gavicas. The majority posits that warning signs may have aided the Gavicas in coping with the fog enshrouded highway. The evidence, however, is clear that the Gavicas were traveling through the fog very slowly in their own lane of traffic, exactly what one would have expected them to do if they had received advance warning of the road hazard. Officer Terry, who was very familiar with I-15W at the point of the collision, testified that he passed through the fog at ten to fifteen miles per hour while using the guardrails on the right of the roadway to locate the traffic lane. Alexander testified that he “either stopped or [was] going very slowly” upon entering the fog and that he proceeded at speeds he estimated at ten to fifteen miles an hour through the fog area after passing the Gavica automobile. It is uncontested that visibility in the fog bank was extremely limited. Defendant Hansen stated that he had almost no forward vision and that he guided his semi-truck on the roadway by watching the white painted line down the side of the highway.

I.C. § 49-701(a), in effect in 1974 at the time of the collision, provided as follows:

“49-701. Basic rule and prima facie limits. — (a) No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing. In every event speed shall be so controlled as may be necessary to avoid colliding with any person, vehicle, or other conveyance on or entering the highway in compliance with legal requirements and the duty of all persons to use due care.” 1

Certainly, where the uncontradicted testimony was that there was virtually no visibility in the fog bank, the Gavicas could not have been expected to do other than they did, /. e., drive very slowly through the fog, even if the state had posted signs warning traffic of the fog area.

The majority appears to place some weight on Mr. Alexander’s testimony that in his opinion the Gavicas “appeared to be lost” while they were traveling through the fog just prior to the collision. In ruling on a motion for summary judgment, the district court must consider only facts which would be admissible at a trial and not opinions or conclusions as to the significance of the evidence. Yribar v. Fitzpatrick, 87 Idaho 366 , 393 P.2d 588 (1964). Alexander’s opinion that the Gavicas “appeared to be lost” was not competent evidence to con *70 sider in the summary judgment proceedings, and further was irrelevant to whether the state’s failure to post warning signs was a legal cause of the subsequent ramming of the Gavicas’ automobile by Hansen’s truck. The uncontradicted competent evidence before the district court was simply that the Gavica automobile was traveling very slowly through the dense fog in the righthand traffic lane of the highway. The Gavicas did exactly what they should have done under the circumstances and what they undoubtedly would have done even in the presence of advance warning of the fog given them by highway markers. The truck driver Hansen, though aware of the fog/smoke condition sufficiently far in advance to reduce his speed to a safe level, nevertheless proceeded into the fog at an excessive rate of speed and continued to drive in the fog at an excessive rate of speed, while watching the painted stripe down the side of the road in order not to run off the highway. The trial court correctly followed our decision in Munson, supra, in concluding that the negligence of the state, if any, in failing to post a sign warning of the reduced visibility ahead was not a proximate cause of this accident.

I would affirm the district court’s summary judgment entered in the defendant respondent State of Idaho’s favor. 2

. Neither the trial court below nor this Court on appeal has addressed the effect of I.C. § 6-904(8) on the state’s possible liability for the Gavicas’ deaths. That section reads as follows:

“6-904. Exceptions to governmental liability. — A governmental entity and its employees while acting within the course and scope of their employment and without malice or criminal intent shall not be liable for any claim which:

“(8) Arises out of a plan or design for construction or improvement to the highways, roads, streets, bridges, or other public property where such plan or design is prepared in substantial conformance with engineering or design standards in effect at the time of preparation of the plan or design, approved in advance of the construction or approved by the legislative body of the governmental entity or by some other body or administrative agency, exercising discretion by authority to give such approval.”

The district court on remand will have to consider the effect of this statute.