Bland v. Davison County, No. 18002

• Court: Supreme Court of South Dakota
• Writing for the Court: HENDERSON; MILLER; AMUNDSON; WUEST; SABERS; AMUNDSON
• Citation: 507 N.W.2d 80
• Parties: Arpie BLAND and Kenneth Bland, Plaintiffs and Appellants, v. DAVISON COUNTY, Defendant and Appellee. . Considered on Briefs on
• Docket Number: No. 18002
• Decision Date: 08 February 1993

Page 80

507 N.W.2d 80 Arpie BLAND and Kenneth Bland, Plaintiffs and Appellants,
v.
DAVISON COUNTY, Defendant and Appellee. No. 18002. Supreme Court of South Dakota. Considered on Briefs on Feb. 8, 1993.
Decided Oct. 20, 1993.
Rehearing Denied Nov. 24, 1993.

N. Dean Nasser, Jr., Nasser Law Offices, William F. Day, Jr., Lynn, Jackson, Shultz & Lebrun, Sioux Falls, for plaintiffs and appellants.

Douglas M. Deibert, Cadwell, Sanford & Deibert, Sioux Falls, for defendant and appellee.

HENDERSON, Justice.

PROCEDURAL HISTORY/ISSUES

This appeal arises from a grant of summary judgment to Davison County (County) on June 11, 1992, negating Arpie Bland's (Bland) claim that County's alleged negligent maintenance of its roads caused her injuries after her automobile slid off an icy section of county road. Her husband, Ken, also a party to this suit, claims loss of consortium. Upon the trial court's finding that there was no legal duty which would allow recovery, ^* Bland filed Notice of Appeal on July 22, 1992, raising the following issues:

I. Do SDCL 31-12-19, SDCL 31-12-26, and the common law create a duty on the part of County to properly and adequately maintain its roads, the breach of which gives rise to a cause of action?

II. Does SDCL 31-32-10 create a duty on the part of County to adequately maintain its roads, the breach of which gives rise to a cause of action?

Upon review, under SDCL 31-12-19, we find that a jury question remains as to whether Davison County's maintenance of its icy roads was performed with reasonable and ordinary care. We reverse and remand.

Page 81

FACTS

On January 6, 1990, Bland apparently lost control of her vehicle while crossing an icy section of Davison County Road # 23 between two shelterbelts of trees. This county road is not a part of the state trunk highway system. After sliding off the road, the vehicle rolled, and resulting injuries left her paraplegic.

These two shelterbelts keep this icy section of road in constant shade. As Bland notes in her brief, every year a snowfall covers this section of highway resulting in an ice-packed surface. Additionally, both she and County were aware of the potentially dangerous conditions. Although County has adhered to a policy of sanding curves, bridges, hills, and intersections with stop signs, it does not, as a practice, additionally sand in other areas. Thus, County does not sand this stretch of road. Bland maintains that an icy patch existed at this section for six weeks. It is the County's inaction which Bland claims to be the breach of duty which resulted in her injuries.

DECISION

Summary judgment may be granted only where there is no genuine issue of material fact. Erickson v. Lavielle, 368 N.W.2d 624 (S.D.1985); Wilson v. Great Northern Railway Co., 83 S.D. 207, 157 N.W.2d 19 (1968). Although negligence actions are not generally suited for summary disposition, Myers v. Lennox Co-op. Ass'n, 307 N.W.2d 863 (S.D.1981), such result is proper when the duty question is resolved in the defendant's favor. Schoenwald v. Farmers Cooperative Association, 474 N.W.2d 519 (S.D.1991). It is well settled that the existence of such a duty is a question of law, and thus subject to de novo review. Brown v. Egan Consol. Sch. Dist. 50-2, 449 N.W.2d 259 (S.D.1989). Therefore, we must determine if a relationship exists between the parties such that the law will impose upon the defendant a legal obligation or reasonable conduct for the benefit of the plaintiff. Schoenwald at 520; Cuppy v. Bunch, 88 S.D. 22, 214 N.W.2d 786 (1974).

Essentially, Bland asks this Court to determine if County's duty to properly and adequately maintain its roads includes the removal of ice and snow as pertains to this case. Duty is broadly outlined under SDCL 31-12-19 which provides:

It shall be the duty of the board of county commissioners to maintain properly and adequately the county highway system within the county by contract or day labor on all or different portions of the same as the board of county commissioners may deem most expedient, and to maintain any secondary highways according to any agreement made by it in consideration of federal aid received for construction and improvement of such highways. (Emphasis added).

Statutorily, County is expressly required to "maintain properly and adequately the county highway system." See Kiel v. DeSmet Township, 90 S.D. 492, 242 N.W.2d 153 (1976); Bailey v. Lawrence County, 5 S.D. 393, 59 N.W. 219 (1894) (In the absence of an express statute holding a county liable for damages caused by an alleged breach of duty, no action by a private individual exists). Although this language does not expressly so provide, County's maintenance program does include tending to ice and snow on hills, curves, bridges, and at stop signs. While it does not dispute a...