Braun v. New Hope Tp.

• Decision Date: 05 June 2002
• Docket Number: No. 22137., No. 22097
• Citation: 646 N.W.2d 737,2002 SD 67
• Parties: Larry BRAUN, Plaintiff and Appellant, v. NEW HOPE TOWNSHIP, a political subdivision of the County of Brown, State of South Dakota, Defendant and Appellee, and T-Lakota Acres, Inc., a corporation, Defendant and Appellee, v. Scott Rozell, Third-Party Defendant and Appellee. Larry Braun, Plaintiff and Appellee, v. New Hope Township, a political subdivision of the County of Brown, State of South Dakota, Defendant and Appellant, and T-Lakota Acres, Inc., a corporation, Defendant and Appellee, v. Scott Rozell, Third-Party Defendant and Appellee.
• Court: South Dakota Supreme Court

646 N.W.2d 737

2002 SD 67

Larry BRAUN, Plaintiff and Appellant, v. NEW HOPE TOWNSHIP, a political subdivision of the County of Brown, State of South Dakota, Defendant and Appellee, and T-Lakota Acres, Inc., a corporation, Defendant and Appellee, v. Scott Rozell, Third-Party Defendant and Appellee.

Larry Braun, Plaintiff and Appellee, v. New Hope Township, a political subdivision of the County of Brown, State of South Dakota, Defendant and Appellant, and T-Lakota Acres, Inc., a corporation, Defendant and Appellee, v. Scott Rozell, Third-Party Defendant and Appellee.

Nos. 22097, 22137.

Supreme Court of South Dakota.

Considered on Briefs April 22, 2002.

Decided June 5, 2002.

Thomas P. Tonner of Tonner, Tobin and King, Aberdeen, for plaintiff Braun.

Greg L. Peterson of Bantz, Gosch, Cremer, Peterson & Sommers, Aberdeen, for defendant New Hope Township.

Chester A. Groseclose of Richardson, Groseclose, Wyly, Wise & Sauck, Aberdeen, for defendant T-Lakota Acres.

Richard L. Russman of Rice, Ewinger & Russman, Aberdeen, for defendant Rozell.

ZINTER, Justice.

[¶ 1.] Plaintiff Larry Braun (Braun) and defendant New Hope Township (Township) appeal from the trial court's order granting summary judgment in favor of defendants T-Lakota Acres, Inc. (T-Lakota) and Scott Rozell (Rozell). T-Lakota and Rozell were allegedly negligent in either removing or failing to properly reinstall a township-road sign that warned of a washout. Township reinstalled the warning sign after T-Lakota's and Rozell's alleged negligence. After entry of summary judgment, Township remained the sole defendant. We affirm.

FACTS AND PROCEDURE

[¶ 2.] The winter of 1996-97 produced heavy snowfall in the Township. The following spring, seven Township roads were washed out by runoff from the melting snow. To protect the public, Township installed a "ROAD CLOSED" sign about three-quarters of a mile from one of the washouts. The sign was mounted on a post in the center of the road.

[¶ 3.] On May 23, 1997, Ron Backman (Backman), an employee of T-Lakota, drove T-Lakota's tractor to Rozell's farm to deliver a 24-foot-wide farm implement. Backman also intended to help Rozell plant soybeans on the Rozell farm. As Backman proceeded toward the farm, he observed the "ROAD CLOSED" sign in the middle of the road. In order to get to Rozell's farm with the implement, Backman had to remove the sign from the middle of the road. When Backman pulled the sign out of the road, a portion of the post broke, and he placed the sign on the side of the road.

[¶ 4.] When the planting was completed at Rozell's farm, Backman and Rozell met to try and put the sign back up. They were not successful. They were only able to prop the sign up against a pile of rocks in the middle of the road. Before leaving, Rozell told Backman that Rozell would return later and put the sign up with a post maul.

[¶ 5.] Rozell, however, forgot to fix the sign. When he did return a few days later, Rozell found that the sign was already reinstalled by someone else. It was later discovered that Township learned the sign was down, and two members of the Township Board reinstalled it. They did not, however, reinstall the sign in the middle of the road. Instead, they reinstalled it on the right side of the road. Because the fence post was broken, the sign was also somewhat shorter than it was before Backman removed it.

[¶ 6.] On June 13, 1997, about three weeks after the sign was reinstalled by Township, Braun was driving his Suburban on the road in order to examine his sunflower field. As he drove past his field, Braun descended down a hill toward the creek that had washed out. Braun claims that he did not see the sign on the right side of the road. He also claims that he did not see the washout in time to avoid it. Braun was unable to stop before driving into the wash-out. He was severely injured as a result of the accident.

[¶ 7.] Braun sued Township and T-Lakota for the injuries he sustained. Both defendants denied responsibility and asserted affirmative defenses. After depositions were taken, T-Lakota moved for summary judgment. The motion was initially denied. After further depositions were taken, Rozell was joined as a third-party defendant. T-Lakota subsequently renewed its motion for summary judgment. Rozell joined in the motion. The trial court ultimately granted the motion. The trial court concluded that Township's alleged negligence was a superseding cause that relieved Rozell and T-Lakota (Backman) of liability for their alleged negligence. Braun appeals.

STANDARD OF REVIEW

[¶ 8.] In reviewing a grant or a denial of summary judgment under SDCL 15-6-56(c), we must determine whether the moving party demonstrated the absence of any genuine issue of material fact and [established] entitlement to judgment on the merits as a matter of law. The evidence must be viewed most favorably to the nonmoving party[,] and reasonable doubts should be resolved against the moving party.... Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied.

South Dakota State Cement Plant Com'n v. Wausau Underwriters Ins. Co., 2000 SD 116, ¶ 9, 616 N.W.2d 397, 400-01.

[¶ 9.] In this case the dispositive issue questions whether a third party's negligence was a superseding cause of the accident. As is explained later, this is a legal question of duty.¹See infra ¶ 11. "For the law to impose a duty, a sufficient relationship must exist between the parties." Gilbert v. United Nat. Bank, 436 N.W.2d 23, 27 (S.D.1989) (internal citations omitted). Foreseeability may also create a duty. Smith v. Lagow Const. & Developing Co., 2002 SD 37, ¶ 17, 642 N.W.2d 187. "Although foreseeability is a question of fact in some contexts, foreseeability in defining the boundaries of a duty is always a question of law." Id. at ¶ 18, 642 N.W.2d 187 (additional citations omitted). "Foreseeability in the `duty' sense is different from foreseeability in fact issues bearing on negligence (breach of duty) and causation." Id. Because this case questions the existence of a duty (created by relationship or through foreseeability), the issue is a question of law that is fully reviewable by this Court. Gilbert, 436 N.W.2d at 27; Lagow, 2002 SD 37 at ¶ 18, 642 N.W.2d at 192.

ANALYSIS AND DECISION

[¶ 10.] We have previously recognized the common law rule that intervening/superseding causes may relieve a negligent actor from that actor's antecedent negligence. "When the natural and continuous sequence of causal connection between the negligent conduct and the injury is interrupted by a new and independent cause, which itself produces the injury, that intervening cause operates to relieve the original wrongdoer of liability." Schmeling v. Jorgensen, 77 S.D. 8, 18, 84 N.W.2d 558, 564 (1957) (emphasis added) (internal citations omitted). However, "[t]he intervening cause must be a superseding cause. It must so entirely supersede the operation of the defendant's negligence that it alone, without his negligence contributing thereto, produces the injury." Id. (emphasis added).

[¶ 11.] Although we have acknowledged this rule in a number of cases,² we have not specifically considered whether it is an issue of duty or causation. We also have not considered the circumstances under which the rule should be applied.

[¶ 12.] The intervening/superseding cause analysis questions the extent of the obligation, or duty, of the original actor who was negligent. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 44 at 301 (5th ed.1984). Although the question is often expressed in terms of "cause" or "proximate cause," those terms avoid the real issue. The appropriate question "is one of negligence and the extent of the obligation: whether the [original actor's] responsibility extends to such interventions, which are foreign to the risk the [original actor] has created. It is best stated as a problem of the scope of the legal obligation to protect the plaintiff against such an intervening cause." Id. at 313.

[¶ 13.] Although Township's alleged negligence was an intervening cause, not all-intervening causes relieve the original actor of liability. As we stated in Schmeling, the intervening cause must also be a superseding cause. Schmeling, 77 S.D. at 19,84 N.W.2d at 564. Although courts have not always distinguished intervening and superseding forces or causes, the Restatement (Second) of Torts delineates the two. "An intervening force is one which actively operates in producing harm to another after the actor's negligent act or omission has been committed." Restatement (Second) of Torts § 441(1) (1984). If the act or operation of an intervening force prevents the original actor's antecedent negligence from becoming a legal cause in bringing about the harm to another, it then becomes a superseding cause. Id. at § 441(2).

[¶ 14.] The determination of when an intervening cause becomes a superseding cause is based on a number of factors. Restatement at §§ 441(2), 442-53. Two common factors are the relationship of the parties and foreseeability. Lagow, 2002 SD 37 at ¶ ¶ 12, 16, 17, 642 N.W.2d at 192 (duty may arise from a relationship or from a foreseeable risk of harm).

[¶ 15.] More specific rules for determining whether a third party's actions become a superseding cause are set forth in § 452 of the Restatement. Generally, "the failure of a third person to act to prevent harm to another threatened by the actor's negligent conduct is not a superseding cause of such harm." Restatement at § 452(1). There is, however, an exception that is the issue in this case. "Where because of lapse of time or otherwise, the duty to prevent harm to another threatened by the actor's negligent conduct is found to have shifted from the actor to a third person, the failure of the third person to prevent such harm is a superseding cause." Id. at § 452(2) (emphasis added). In such cases the duty, and...