Dohrman v. Lawrence County, 10276

• Decision Date: 01 July 1966
• Docket Number: No. 10276,10276
• Citation: 143 N.W.2d 865,82 S.D. 207
• Parties: William DOHRMAN, Special Administrator of Donald Zimmerman, Deceased, Plaintiff and Appellant, v. LAWRENCE COUNTY, South Dakota, the County Commissioners of Lawrence County, South Dakota, and Richard A. Curtis, as Highway Superintendent of Lawrence County, South Dakota, Defendants and Respondents.
• Court: South Dakota Supreme Court

Page 865

143 N.W.2d 865

82 S.D. 207

William DOHRMAN, Special Administrator of Donald Zimmerman Deceased, Plaintiff and Appellant, v. LAWRENCE COUNTY, South Dakota, the County Commissioners of Lawrence County, South Dakota, and Richard A Curtis, as Highway Superintendent of Lawrence County, South Dakota Defendants and Respondents.

No. 10276.

Supreme Court of South Dakota.

July 1, 1966.

Milek & Brown, Sturgis, for plaintiff and appellant.

Costello, Porter, Hill, Banks & Nelson, Rapid City, D. O. Dillavou, Lawrence County State's Atty., Deadwood, for defendants and respondents.

HOMEYER, Judge.

In this action, plaintiff as special administrator of the estate of Donald Zimmerman, deceased, seeks damages for an alleged wrongful death from the defendants, Lawrence County and its highway superintendent. A motion to dismiss made in the defendants' answer and heard before trial was granted and the plaintiff appeals.

The complaint alleges the decedent on September 30, 1962, was driving an automobile on a county road about four miles west of Lead, South Dakota; that he was unfamiliar with such road; that at a sharp curve on a steep hill he drove off the road and was killed; that defendants were negligent in failing to keep and maintain said road in a reasonably safe condition and in not posting it with warning signs and such neglect caused the death; that defendants had notice and knowledge of the condition of the road for several years before the accident.

At common law no right of action existed against a county for recovery of damages resulting from a defective highway or bridge and the source of liability in this state for damages of this character is statutory. Bailey v. Lawrence County, 5 S.D. 393, 59 N.W. 219; Hanigan v. Minnehaha County, 47 S.D. 606, 201 N.W. 522; Brown v. Roberts County, 49 S.D. 173, 206 N.W. 479; Clementson v. Union County, 63 S.D. 104, 256 N.W. 794; Robinson v. Minnehaha County, 65 S.D. 628, 277 N.W 324. The applicable statute is SDC 1960 Supp. 28.0913:

'In case any highway, culvert, or bridge shall become in whole or in part destroyed or out of repair by reason of floods, fires, or other cause to such extent as to endanger the safety of public travel, it shall be the duty of the governing body or board under statutory duty to maintain such highway, culvert, or bridge upon receiving notice thereof to cause to be erected for the protection of travel and public safety, within forty-eight hours thereafter, substantial guards over such defect or across such highway of sufficient height, width, and strength to guard the public from accident or injury and to repair the same within a reasonable time thereafter. It shall also be the duty of such governing body or board to guard any abandoned public highway, culvert, or bridge in like manner.

'Any person who shall sustain injury to person or property by reason of any violation of this section shall have a cause of action against the county, township, city, or town as the case may be for such damages as he may have sustained.'

This statute prescribes the nature and extent of the duty imposed upon the county to protect the public from injury occasioned by defective highways and bridges and consequently the standard of care cannot be predicated on principles of common law negligence. The county's liability must be determined from the standard of conduct imposed by the statute and not the standard of a reasonably prudent person. Lipp v. Corson County, 76 S.D. 343, 78 N.W.2d 172. By explicit provision, a cause of action against the county is granted to any person injured by reason of the violation of the duty fixed by statute.

Before the 1939 revision the statutory duty imposed by legislative enactment, Sections 8589, 8590, Rev.Code of 1919, included the broad duty to render highways 'safe, passable and free from danger of accident or injury to persons or property while in the lawful use thereof.' The legislature saw fit in its adoption of the 1939 revision to curtail such duty and it is now established law in this state that the county's obligation is confined to 'the specific duty to guard and repair a damaged or destroyed highway.' Reaney v. Union County, 69 S.D. 392, 10 N.W.2d 762. See also Lipp v. Corson County, supra; Jackson County, S.D. v. Dufty, 8 Cir., 147 F.2d 227; Turner County, S.D. v. Miller, 8 Cir., 170 F.2d 820.

An examination of plaintiff's complaint reveals no allegation sufficient to bring it within the embrace of SDC 1960 Supp. 28.0913 and consequently no cause of action was stated against the defendant county. A failure to install adequate signs warning of danger incident to a sharp curve or a steep hill is not a violation of duty under the statute. Referring to derelictions of this type in the Reaney case this court said: 'The highway did not become defective in the described respects because it had 'become * * * destroyed or out of repair by reason' of any cause. These defects were inherent in the design or plan of the highway the county provided the public, and we conclude that the present statute does not afford plaintiff a remedy for injuries proximately caused thereby.'

The highway superintendent of Lawrence County is a public officer appointed by the board of county commissioners. SDC 1960 Supp. 28.0304; Griggs v. Harding Co., 68 S.D. 429, 3 N.W.2d 485. The complaint does not attempt to allege facts tending to show individual or personal negligence on his part. He is made a defendant only in his official capacity as county highway superintendent. His liability, therefore, is subject to the same statutory limitation as that of Lawrence County. Spielman v. State, N.D., 91 N.W.2d 627; Swartzwelter v. Iowa Southern...