Foster-Naser v. Aurora County , 2016 S.D. LEXIS 6 ( 2016 )

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2016 S.D. 6IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
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LYNN FOSTER-NASER, Individually
and as Special Administrator of the
Estate of TRAVIS J. NASER, Plaintiff and Appellant,
v.
AURORA COUNTY, SOUTH DAKOTA, Defendant and Appellee,
and
DOUGLAS COUNTY, SOUTH DAKOTA, Defendant.
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APPEAL FROM THE CIRCUIT COURT OF
THE FIRST JUDICIAL CIRCUIT
AURORA COUNTY, SOUTH DAKOTA
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THE HONORABLE PATRICK T. SMITH
Judge
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GEORGE F. JOHNSON
STEPHANIE E. POCHOP of
Johnson Pochop & Bartling
Gregory, South Dakota Attorneys for plaintiff
and appellant.
DOUGLAS M. DEIBERT of
Cadwell, Sanford, Deibert & Garry, LLP
Sioux Falls, South Dakota Attorneys for defendant
and appellee.
****
CONSIDERED ON BRIEFS
ON NOVEMBER 30, 2015
OPINION FILED 01/27/16
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WILBUR, Justice
[¶1.] In this negligence case, the circuit court granted the county summary
judgment. It found that no duty existed between the county and the plaintiff as a
matter of law. The plaintiff appeals asserting a material issue of fact is in dispute
whether the county owed the plaintiff a duty. We affirm.
Background
[¶2.] On September 30, 2010, Travis Naser died in a one-vehicle accident
while he was the passenger in a vehicle being driven by Lowell Langstraat. The
accident occurred after Langstraat drove off the road because he failed to negotiate
a “T” intersection at a dead-end road. The dead-end intersects two gravel roads in
rural South Dakota. The north-south road, 392nd Avenue, is located in Douglas
County. The east-west road, 268th Street, is located in Aurora County. After the
accident, Travis’s wife, Lynn Foster-Naser, brought suit against Aurora and
Douglas counties for wrongful death. This appeal concerns only her suit against
Aurora County. Foster-Naser alleged that Aurora County negligently failed to
maintain the double-arrow sign on 268th Street. She claimed that had the sign
been properly maintained it would have warned Langstraat that the dead-end
intersection required a sharp right or left turn.
[¶3.] Aurora County moved for summary judgment and asserted that it
owed no duty to Foster-Naser to maintain the double-arrow sign. It submitted that
because 268th Street is a township road, Aurora Township had the duty to maintain
the street. Foster-Naser did not dispute that Aurora Township is the governing
body responsible for 268th Street. Instead, it responded that an oral agreement
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existed between the County and the Township whereby the County agreed to
maintain the Township’s roads. This oral agreement, Foster-Naser averred, created
a duty on the part of the County to maintain the double-arrow sign on 268th Street.
[¶4.] The circuit court held a hearing on the County’s motion for summary
judgment. The County conceded that it had entered into an oral agreement with
the Township to maintain the Township’s roads. The County explained that the
agreement had existed for “as long as” Highway Superintendent Roger Konechne
could remember. But the County insisted that the Township never hired the
County to install, maintain, or repair signage on the Township’s roads. The
Township only hired the County to blade gravel and plow snow on the Township’s
roads because the Township did not have the heavy equipment necessary for that
type of road maintenance.
[¶5.] Foster-Naser disputed that the County merely agreed to plow snow
and blade gravel. She directed the circuit court to the County’s “Sales History
Report” and to Highway Superintendent Konechne’s deposition testimony. In the
Sales History Report, the County billed the Township for time spent on rock work,
back sloping, flood work, shoulder work, disking, spot gravel, blading, snow
removal, and replacing a culvert. The Sales History Report also documented that
the County sold certain traffic signs to the Township. Konechne testified that he
traveled 268th Street as part of the County’s duty to maintain the road.
Specifically, he remarked that he traveled 268th Street because he “just wanted to
make sure we [the County employees] were maintaining it properly.” According to
Foster-Naser, the Sales History Report and Konechne’s testimony created a fact
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question whether the County assumed responsibility for the Township’s statutory
duty to maintain the sign on 268th Street.
[¶6.] After the hearing, the circuit court issued a memorandum decision and
order. It noted that “without question” the Township was responsible for 268th
Street and had a statutory duty under SDCL 31-13-1 and -26 to “repair or maintain
proper roadway markings or signage.” The court further held that SDCL 31-13-1,
-26, and -7 gave the Township “explicit and implied authority to contract with other
municipalities for road grading, snow removal, and any other maintenance that the
township so chooses.” Yet, in the court’s view, the County would not “be liable
under the same negligence theory as the original municipality” unless the County
assumed “full control under the contract.” See generally Robinson v. Minnehaha
Cty., 65 S.D. 628, 277 N.W. 324 (1938). If the County did not assume full control,
the court interpreted the law to mean that the County would only be “liable for the
duties it specifically contracted to do.” See id. at 328.
[¶7.] The court then examined whether the County assumed full control
when it agreed to maintain the Township’s roads. The court noted that the County
presented evidence that it only agreed to blade gravel and plow snow for the
Township. It rejected Foster-Naser’s claim that the County assumed a duty to
repair or maintain the Township’s signage based on the fact the County sold the
Township traffic signs. And it found unpersuasive Foster-Naser’s argument that
Konechne’s use of the word “maintenance” during his deposition meant the County
assumed full control over the Township’s duty to maintain 268th Street. According
to the court, Foster-Naser failed to present specific facts, testimony, contract
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evidence, or written documentation that “impliedly” or “purportedly” showed that
Aurora County exhibited full control over the Township’s duty to maintain its roads.
[¶8.] The court granted Aurora County summary judgment. Foster-Naser
appeals and we restate the issue as follows:
Whether there is a genuine issue of material fact in dispute that
Aurora County had a duty to maintain the traffic sign at the
intersection of 392nd Avenue and 268th Street in Aurora
Township, South Dakota.
Analysis
[¶9.] For purposes of this appeal, we assume the Township had a statutory
duty to maintain the double-arrow sign on 268th Street. So the only question is
whether Aurora County assumed the Township’s duty when it agreed to maintain
the Township’s roads. Foster-Naser acknowledges that whether a duty exists is a
question of law. Yet she claims that under the circumstances of this case a jury
must decide whether the County’s oral agreement to provide road maintenance
included an agreement to maintain the double-arrow sign on 268th Street. She
contends, “[T]he reality is that in the absence of a written agreement, or an actual
party to the original oral agreement, no one can prove exactly what the terms of the
agreement were, and we must rely on testimony, photographs and sales histories to
prove what duties the County had assumed from and was performing for the
Township.” She then avers that Konechne’s deposition testimony and the County’s
Sales History Report create a material issue of fact in dispute as to the terms of the
parties’ agreement.
[¶10.] Whether a duty exists and the scope of that duty is for the court to
determine. Hamilton v. Sommers, 2014 S.D. 76, ¶ 22, 855 N.W.2d 855, 862. The
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question does not become one for a jury merely because there is an oral agreement
between the parties created long ago. Nor does duty become a fact question because
Foster-Naser believes a jury could infer from Konechne’s deposition testimony and
the Sales History Report that the County agreed to do more than blade gravel and
plow snow on the Township roads. Duty is a question of law and “[s]ummary
judgment is proper in negligence cases if no duty exists[.]” Millea v. Erickson, 2014
S.D. 34, ¶ 9, 849 N.W.2d 272, 275 (quoting First Am. Bank & Tr., N.A. v. Farmers
State Bank, 2008 S.D. 83, ¶ 13, 756 N.W.2d 19, 25-26).
[¶11.] Here, the circuit court concluded that no duty existed between the
County and Foster-Naser because the evidence did not establish that Aurora
County assumed full control over the Township’s statutory duty to maintain 268th
Street. “On review, we apply the same test as the trial court: we probe the record
for material facts, resolve disputed facts in favor of the nonmoving party, and decide
whether the moving party is entitled to a judgment as a matter of law.” Fisher v.
Kahler, 2002 S.D. 30, ¶ 5, 641 N.W.2d 122, 125. “We require ‘those resisting
summary judgment to show that they will be able to place sufficient evidence in the
record at trial to support findings on all the elements on which they have the
burden of proof.’” Bordeaux v. Shannon Cty. Schs., 2005 S.D. 117, ¶ 14, 707 N.W.2d
123, 127 (quoting Chem-Age Indus., Inc. v. Glover, 2002 S.D. 122, ¶ 18, 652 N.W.2d
756, 765). General allegations without specific supporting facts are insufficient. Id.And “proof of a mere possibility is never sufficient to establish a fact.” Estate of
Elliot v. A & B Welding Supply Co., Inc., 1999 S.D. 57, ¶ 16, 594 N.W.2d 707, 710.
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[¶12.] From our review of the record in a light most favorable to Foster-
Naser, there is no evidence that the County orally agreed to assume full control over
the Township’s road maintenance duties. More specifically, there is no evidence
that the County agreed to maintain, repair, or install the Township’s signage or the
double-arrow sign on 268th Street. The fact that the County purchased traffic signs
and sold those traffic signs to the Township is not probative evidence that the
Township hired the County to maintain those same (or any) signs. See Stern Oil
Co., Inc. v. Brown, 2012 S.D. 56, ¶ 8, 817 N.W.2d 395, 398 (the party resisting
summary judgment must present sufficient probative evidence in support of the
claim). And Konechne’s testimony that he traveled 268th Street as part of the
County’s duty to “maintain” the road does not establish that the County assumed
full control of the Township’s statutory duty to maintain and repair roadway
signage. Konechne testified as follows:
Counsel: The last witness was telling me that the Highway
superintendent in Douglas County, as one of his jobs, is to drive
around and check to see if the signs have been damaged or run
over or any of that stuff. Is that one of your jobs as well?
Konechne: It is on County roads.
Counsel: Okay. And you’re saying that 268th in Aurora
County at the County line is not – not one of your jobs to check
that one or do anything on that one.
Konechne: Correct. That is a township road.
Counsel: So you – why were you driving down it to check the
road conditions?
Konechne: We maintain that road, and I just wanted to make
sure we were maintaining it properly.
Counsel: When you maintain a road, does that require you to
do anything with the signs?
Konechne: Nope. All we do is blade.
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Counsel: Did you have some kind of agreement with the
township or is there some paperwork that shows that the
township is supposed to take care of those signs?
Konechne: No. Just verbally. They take care of their roads,
and we take care of County roads.
....
Counsel: . . . okay, how long had the County been handling the
blading on that road, 268th?
Konechne: As long as I can remember. You know, it was –
we’ve been doing – the township hires us to do the blading for as
long as I can remember.
Counsel: But they didn’t hire you to do anything with the signs
or anything other than the blading.
Konechne: Correct. Blading and snow removal.
....
Counsel: You said that your guys that blade sometimes notice
that signs have been damaged or knocked down.
Konechne: Yes.
Counsel: And then they call you and let you know.
Konechne: Yep.
Counsel: And do they do that even when they’re blading a
township road.
Konechne: Yeah.
Counsel: Okay. And then – so what do you do about that when
it’s a township road that’s got a problem?
Konechne: I’ll – I’ll call a township board member and notify
them so they can go take care of it.
Counsel: And do any of the townships hire you – if they hire
you to do some of their blading, do they hire you to go do those
repairs?
Konechne: No.
Counsel: For your group?
Konechne: No.
Counsel: Okay, they go out and do it themselves.
Konechne: I would assume so.
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Without sufficient probative evidence that the County assumed the Township’s duty
to maintain its roads, the circuit court did not err when it granted Aurora County
summary judgment.
[¶13.] The circuit court also did not err when it rejected Foster-Naser’s claim
that the County’s oral agreement to provide “road maintenance” includes, as a
matter of law, “the maintenance of existing signs and other items appurtenant to
roadways.” Foster-Naser relies on Kiel v. DeSmet Township, where we held that the
duty under SDCL 31-32-10 to repair a county highway includes a “duty to maintain
and keep” an erected warning “sign in reasonable repair for the safety of public
travel.” See 90 S.D. 492, 497, 242 N.W.2d 153, 155 (1976). Kiel, however,
implicated our statutory interpretation of a governing body’s duty to maintain a
road. This case concerns the County’s contractual agreement to maintain the
Township’s roads, and Foster-Naser has not presented sufficient probative evidence
that the County’s contractual agreement to provide road maintenance included an
agreement to maintain the Township’s signage.
[¶14.] Affirmed.
[¶15.] GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and KERN,
Justices, concur.
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