Diegel v. City of West Fargo

• Citation: 546 N.W.2d 367
• Decision Date: 25 April 1996
• Docket Number: No. 950311,950311
• Parties: Troy DIEGEL, individually and as Trustee for the North Dakota Workers Compensation Bureau, Plaintiff and Appellant, v. CITY OF WEST FARGO, Defendant and Appellee, Joel GEHRKE, Defendant, Third-Party, Plaintiff, and Appellant, and Tami Gehrke, Additional Defendant, Third-Party Plaintiff, and Appellant, v. BURLINGTON NORTHERN RAILROAD COMPANY, a corporation, Third-Party Defendant and Appellee. Civil
• Court: United States State Supreme Court of North Dakota

Page 367

546 N.W.2d 367

Troy DIEGEL, individually and as Trustee for the North

Dakota Workers Compensation Bureau, Plaintiff and Appellant, v. CITY OF WEST FARGO, Defendant and Appellee, Joel GEHRKE, Defendant, Third-Party, Plaintiff, and Appellant, and Tami Gehrke, Additional Defendant, Third-Party Plaintiff, and Appellant, v. BURLINGTON NORTHERN RAILROAD COMPANY, a corporation,

Third-Party Defendant and Appellee.

Civil No. 950311.

Supreme Court of North Dakota.

April 25, 1996.

Kim E. Brust, Conmy, Feste, Bossart, Hubbard & Corwin, Ltd., Fargo, for plaintiff and appellant Troy Diegel.

Leland F. Hagen, Lee Hagen Law Office, Ltd., Fargo, for defendants, third-party plaintiffs and appellants Joel Gehrke and Tami Gehrke.

Kim E. Brust argued for all the appellants.

Ronald F. Fischer, Pearson, Christensen, Larivee, Clapp, Fiedler & Fischer, Grand Forks, for defendant and appellee City of West Fargo.

James S. Hill, Zuger Kirmis & Smith, Bismarck, for third-party defendant and appellee Burlington Northern. Submitted on brief.

SANDSTROM, Justice.

Troy Diegel, individually and as trustee for the North Dakota Workers Compensation Bureau, ¹ Joel Gehrke, and Tami Gehrke (collectively referred to as plaintiffs) appealed from a summary judgment dismissing their negligence claims against the City of West Fargo for injuries incurred in a motor vehicle accident at a railroad crossing in West Fargo. We hold summary judgment dismissing the plaintiffs' negligence claims against West Fargo was proper because West Fargo had no duty to change the grade of the street, or to post a speed limit or other warning sign near the crossing. We therefore affirm the summary judgment.

I

At about 6:30 a.m. on November 6, 1989, pickup trucks driven by Diegel and by Joel Gehrke collided head-on at a "hump back" Burlington Northern railroad crossing on 9th Street East in West Fargo. The railroad crossing was on the crest of an eight-foot rise, and drivers of vehicles approaching the crossing could not see vehicles approaching from the other direction.

Diegel brought a negligence action against Joel Gehrke and West Fargo. Gehrke counterclaimed against Diegel and cross-claimed against West Fargo. Gehrke's wife, Tami, also filed a negligence claim against Diegel and West Fargo for loss of consortium. The plaintiffs all alleged West Fargo was negligent because the slope of the street created a visual obstruction which was unreasonably dangerous.

The Gehrkes also filed a "third-party complaint and direct claim" against Burlington Northern, alleging it was liable for their damages and for any damages which Joel Gehrke was required to pay to Diegel. The claims between Diegel and the Gehrkes were ultimately settled. Burlington Northern then moved to dismiss the Gehrkes' "third party complaint and direct claim." The Gehrkes conceded their contribution claim against Burlington Northern was improper and sought to realign the parties. They moved to amend the pleadings to join Burlington Northern and the Gehrkes' underinsured motorist carrier, American Family Mutual Insurance, as defendants and to consolidate the claims into one action. The district court dismissed without prejudice the Gehrkes' "third-party complaint and direct claim" against Burlington Northern. The court also denied the Gehrkes' motion to amend and consolidate their claims into one action.

West Fargo then moved for summary judgment on the plaintiffs' negligence claims against it. The plaintiffs resisted West Fargo's motion, contending the slope of the street created a visual obstruction which was unreasonably dangerous. They asserted West Fargo had a duty to change the grade of the street to improve the sight line for drivers approaching the crossing, or to post a speed limit or other warning sign near the crossing.

The district court granted summary judgment for West Fargo. The court held the plaintiffs' negligence claims were barred under N.D.C.C. § 32-12.1-03(3), because West Fargo had discretionary immunity to decide whether to change the grade of the street, or to post a speed limit or other warning sign near the crossing. The court also held West Fargo had no duty to change the grade of the street, or to post a speed limit or other warning sign near the crossing. The plaintiffs appealed from the summary judgment.

The district court had jurisdiction under N.D. Const. Art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal is timely under N.D.R.App.P. 4(a). We have jurisdiction under N.D. Const. Art. VI, §§ 2, 6, and N.D.C.C. § 28-27-01.

II

The plaintiffs contend the district court erred in granting West Fargo summary judgment. They argue the court erred in concluding their claims were barred by discretionary immunity under N.D.C.C. § 32-12.1-03(3), and in holding West Fargo had no duty to correct or warn of the dangerous condition which it knew existed on the street. Those issues are raised in the posture of summary judgment.

A

Summary judgment is a procedural device for the prompt and expeditious disposition of a controversy without a trial if either party is entitled to judgment as a matter of law, if no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or if resolving disputed facts would not alter the result. Osterman-Levitt v. MedQuest, Inc., 513 N.W.2d 70, 72 (N.D.1994). In considering a motion for summary judgment, the evidence must be viewed in the light most favorable to the party opposing the motion, who must be given the benefit of all favorable inferences which can be reasonably drawn from the evidence. Ellingson v. Knudson, 498 N.W.2d 814, 817 (N.D.1993).

B

The plaintiffs contend the district court erred in concluding West Fargo had no duty to change the grade of the street, or to post a speed limit or other warning sign near the crossing. They argue genuine issues of material fact exist about whether the sight line for drivers approaching the railroad crossing created a dangerous condition in the street and whether West Fargo had notice of the condition.

Actionable negligence consists of a duty on the part of an allegedly negligent person to protect the plaintiff from injury, a failure to discharge the duty, and a resulting injury proximately caused by the breach of the duty. Rawlings v. Fruhwirth, 455 N.W.2d 574, 576 (N.D.1990); Carlson Homes, Inc. v. Messmer, 307 N.W.2d 564, 566 (N.D.1981). If no duty exists on the part of the alleged tortfeasor, there is no actionable negligence. DeLair v. County of LaMoure, 326 N.W.2d 55, 58 (N.D.1982); Belt v. City of Grand Forks, 68 N.W.2d 114, 119 (N.D.1955). Although negligence actions are ordinarily not appropriate for summary judgment, whether a duty exists is generally a preliminary question of law for the court to decide. Crowston v. Goodyear Tire & Rubber Co., 521 N.W.2d 401, 406 (N.D.1994); DeLair at 58. If the existence of a duty depends upon factual determinations, the facts must be determined by the trier-of-fact. Rawlings at 577; Barsness v. General Diesel & Equipment Co., 383 N.W.2d 840, 843 (N.D.1986). Issues of fact, however, may become issues of law for the court, if reasonable persons could reach only one conclusion from the facts. Rawlings at 577.

The plaintiffs have cited no statute or rule requiring West Fargo to change the grade of the street, or to post a speed limit or other warning sign near the crossing. Compare Slaubaugh v. Slaubaugh, 466 N.W.2d 573, 578 (N.D.1991) (Uniform Manual on Traffic Control Devices required county to post warning sign at intersection). A municipality, however, has a duty under negligence principles to exercise reasonable care to keep its streets reasonably safe for use by the public and to guard against unreasonably dangerous conditions which can be foreseen in the exercise of reasonable prudence and care. See DeLair at 62; Belt at 119-120; Dahl v. Nelson, 79 N.D. 400, 56 N.W.2d 757, 761 (1953); Maloney v. City of Grand Forks, 73 N.D. 445, 15 N.W.2d 769, 773 (1944); Braatz v. City of Fargo, 19 N.D. 538, 125 N.W. 1042, 1043 (1910); Ludlow v. City of Fargo, 3 N.D. 485, 57 N.W. 506, 507-508 (1893); Larson v. City of Grand Forks, 3 Dak. 307, 19 N.W. 414, 416 (1884). See 19 McQuillin, Municipal Corporations § 54.11 (3rd Rev. Ed.1994).

In DeLair, this Court affirmed a summary judgment dismissal of a negligence action against a county, a township, and private landowners for injuries sustained by a motorcyclist who drove through a "T" intersection of a county highway and a township road and hit a gate on the private landowners' property. The motorcyclist alleged the defendants had breached their duty to protect others from unreasonable risks. This Court held, as a matter of law, the defendants had no duty to the motorcyclist, because the intersection was controlled by a stop sign and was not a pit, structure, excavation or trap which was unreasonably dangerous or hazardous to a driver exercising ordinary care. DeLair at 63. The majority said, "[t]he duties of the various political subdivisions in connection with building and maintaining roads do not include a lagniappe in the form of additional precautionary measures to protect persons from their own careless acts." DeLair at 62.

In Belt, the plaintiff, a passenger in an automobile driven by her husband, was injured when her husband failed to turn at a "jog" in an intersection at Ninth Avenue and South Washington Street in Grand Forks and drove west across South Washington into an embankment in the ditch. The plaintiff brought a negligence action against Grand Forks, alleging it had a duty to protect the public with suitable warnings or barriers to prevent travelers from running into the ditch. The plaintiff asserted Grand Forks was negligent in constructing and improving only the middle thirty feet of South Washington; permitting vegetation to grow on the embankment; failing to place a stop sign at the intersection; failing to warn of the "jog" in the road; and...