DeLair v. LaMoure County, 10205

• Decision Date: 27 October 1982
• Docket Number: No. 10205,10205
• Citation: 326 N.W.2d 55
• Parties: Louie DeLAIR, Plaintiff and Appellant, v. COUNTY OF LaMOURE, Township of Sheridan, Walter Piehl and Hattie Piehl, Defendants and Appellees. Civ.
• Court: North Dakota Supreme Court

Page 55

326 N.W.2d 55

Louie DeLAIR, Plaintiff and Appellant, v. COUNTY OF LaMOURE, Township of Sheridan, Walter Piehl and Hattie Piehl, Defendants and Appellees.

Civ. No. 10205.

Supreme Court of North Dakota.

Oct. 27, 1982.

Gilje, Greenwood & Dalsted, Hjellum, Weiss, Nerison, Jukkala & Wright, Jamestown, for plaintiff and appellant; argued by Charles J. Gilje, Jamestown.

Letnes, Marshall, Fiedler & Clapp, Grand Forks, for defendant and appellee County of LaMoure; argued by Jay Fiedler, Grand Forks.

Zuger & Bucklin, Bismarck, for defendant and appellee Township of Sheridan; argued by James Hill, Bismarck.

Fleck, Mather, Strutz & Mayer, Bismarck, for defendants and appellees Walter Piehl and Hattie Piehl; argued by Steven Storslee, Bismarck.

SAND, Justice.

Louie DeLair [DeLair] appealed from summary judgments ¹ dismissing his negligence action against LaMoure County [LaMoure], Sheridan Township [Sheridan] and Walter Piehl and Hattie Piehl [Piehls] for injuries sustained in the early morning of 12 July 1980 when the motorcycle he was operating ran into a fence located on land owned by the Piehls in Sheridan Township, LaMoure County, North Dakota.

The principal facts are not in dispute, and the following diagram showing the section lines, roads, fence, stop sign, and location of the impact, and other pertinent information, will be helpful in resolving the issue presented.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

DeLair drove his motorcycle on the improved Sheridan Township gravel road coming from the east, going west, and apparently went across county highway 61 onto the approach and into the fence gate. The fence and gate are on the Piehls' property. The city of Marion's boundaries coincide with the boundaries of Section 10. According to affidavits and depositions submitted by the parties, the section line between Section 10 and Section 15 never has been an improved road.

The record is not clear as to whether or not DeLair stopped at the stop sign at the intersection. DeLair was in a coma for approximately a month after the accident, and his deposition reflects that he could not remember the events of the day of the accident. The passenger on DeLair's motorcycle, Todd Schultz, did not remember if DeLair stopped at the stop sign.

According to depositions, DeLair had been at a party prior to the accident and had consumed between six and ten beers. DeLair testified in his deposition that he traveled on gravel roads and not highways when he had been drinking, and he would usually go through stop signs when no one was coming on the intersecting road.

At least one other motorcycle traveled the same route on the night of the accident. The depositions of Lee Luck and Craig Headland reflect that they left the party with DeLair and followed DeLair's motorcycle at a speed of approximately 55 miles per hour. They further testified that the motorcycle they were on went through the stop sign without stopping, and onto the approach, and through a hole in the gate made by DeLair's motorcycle. Neither Luck nor Headland saw the accident involving DeLair, and they did not know if DeLair stopped at the stop sign. DeLair ultimately pleaded guilty to a charge of careless driving in connection with the accident.

DeLair initiated the instant action against the named defendants. Motions for summary judgment were made and the court, in response to the motions, granted summary judgment in favor of LaMoure, Sheridan, and the Piehls, dismissing the complaint. The trial court, in its memorandum opinion, concluded that the undisputed facts established that the point of impact occurred on a designated public roadway which was neither maintained nor supervised as a part of a county or township road system and held that Sheridan and LaMoure had "no duty to maintain a road and cannot be forced to maintain a road on a section line which they have not chosen to have as a part of their designated road system." The trial court also concluded that no duty was owed to DeLair by the Piehls. Separate summary judgments dismissing each defendant were entered, and DeLair appealed to this Court.

DeLair contended that the trial court erred in determining no duty was owed to him by LaMoure, Sheridan, and the Piehls. DeLair raised several subissues which he contended supported his position that there was a duty.

The question of duty must be considered within the framework of our law on summary judgment. The summary judgment procedure of Rule 56, North Dakota Rules of Civil Procedure, is a procedural device available for promptly and expeditiously disposing of a controversy without a trial whenever there is no dispute as to material facts or if only a question of law is involved. Zuraff v. Empire Fire & Marine Insurance Co., 252 N.W.2d 302 (N.D.1977). If there is a dispute of facts, summary judgment may be appropriate if the law is such that a resolution of the factual dispute will not change the result. Sande v. City of Grand Forks, 269 N.W.2d 93 (N.D.1978).

Generally, negligence actions are not appropriate for summary judgment. Kirton v. Williams Electric Co-op., Inc., 265 N.W.2d 702 (N.D.1978). However, a negligence action presupposes the existence of a duty, Larson v. Meyer, 135 N.W.2d 145 (N.D.1965), and whether or not a duty exists in a negligence action is a matter of law to be resolved by the court before allowing a jury to hear evidence concerning a breach of that duty and proximate cause. Lumpkin v. Streifel, 308 N.W.2d 878 (N.D.1981). See, W. Prosser, Law of Torts, (4th ed. 1971), p. 206. Consequently, if LaMoure, Sheridan, and the Piehls did not have a duty to DeLair, then summary judgment dismissing DeLair's complaint was proper.

The trial court's memorandum decision relied upon the following language from Belt v. City of Grand Forks, 68 N.W.2d 114, 120 (N.D.1955), to support its conclusion:

"It is well settled that a city has the right to improve and open for public travel only a portion of a platted street, and a city is not liable for injuries to persons using a portion of the street which a city has not undertaken to improve."

The trial court then stated that "One could simply substitute the word county or township for city and have the same substance of the law."

DeLair contended that the trial court's reliance on Belt v. City of Grand Forks, supra, was misplaced because section lines outside of city limits are considered public roads regardless of the section line being opened by a governing board and regardless of the section line being traveled, citing North Dakota Century Code § 24-07-03. However, an examination of the statute indicates his contention is misplaced.

Section 24-07-03, NDCC, provides as follows:

"In all townships in this state, outside the limits of incorporated cities, and outside platted townsites, additions, or subdivisions recorded pursuant to chapter 40-50, the congressional section lines shall be considered public roads, to be opened to the width of two rods [10.06 meters] on each side of such section lines, where the same have not been opened already upon the order of the board having jurisdiction, without any survey being had, except where it may be necessary on account of variations caused by natural obstacles, subject, however, to all the provisions of this chapter in relation to assessments of damages.

"The county commissioners, if petitioned by a person having an interest in the adjoining land or a portion thereof, are authorized, after public hearing and a finding by the commissioners of public benefit, to close section line roads or portions thereof which are not used for ten years, are not traveled due to natural obstacles or difficulty of terrain, are not required due to readily accessible alternate routes of travel, or are intersected by interstate highways causing such section line road to be a dead end, providing the closing of such dead end section line road does not deprive adjacent landowner access to his property. After such section line roads are closed, they may be leveled and farmed by the adjacent landowners or tenants. However, if drainage is interfered with due to the farming operations, alternate means of drainage must be provided for by the landowners or tenants farming such lands." [Emphasis added.]

A brief history of this section will be helpful to understand the issue raised by DeLair.

The Act of July 26, 1866, Ch. 262, § 8, 14 Stat. 253, R.S. § 2477, now 43 U.S.C. § 932, provided that "The right of way for the construction of highways over public lands, not reserved for public uses, is granted." This was interpreted as an offer of public land which could be accepted by the states in various ways. The Dakota Territory acceptance was effectuated by Laws, Dakota Territory 1871, Ch. 33, which provided that: "hereafter all section lines in this Territory shall be and are hereby declared public highways as far as practicable." This Act remained essentially the same until 1897, when the statute was amended by Ch. 112, § 3, which provided as follows:

"In all townships in this state in which no public roads have been laid out or which have not been organized, the congressional section lines shall be considered public roads, to be opened to the width of two rods on each side of such section lines, upon the order of the board of supervisors, without any survey being had, except where it may be necessary on account of variations caused by natural obstacles, subject, however, to all the provisions of this chapter in relation to assessment of damages."

The statute was amended in 1899 by Ch. 97, which provided, in part, as follows:

"In all townships in this state outside the limits of incorporated cities, villages or towns, the congressional section lines shall be considered public roads, to be opened to the width of two rods on each side of such section lines, where the same have not already been opened upon the order of the board having...