Finkbiner v. Clay County

• Decision Date: 21 February 1986
• Docket Number: No. 58390,58390
• Citation: 714 P.2d 1380,238 Kan. 856
• Parties: Craig FINKBINER, Appellant, v. CLAY COUNTY, Kansas; and Mulberry Township of Clay County, Kansas, Appellees.
• Court: Kansas Supreme Court

Page 1380

714 P.2d 1380

238 Kan. 856

Craig FINKBINER, Appellant, v. CLAY COUNTY, Kansas; and Mulberry Township of Clay County Kansas, Appellees.

No. 58390.

Supreme Court of Kansas.

Feb. 21, 1986.

Syllabus by the Court

1. The Manual on Uniform Traffic Control Devices provides the standards for placing signs. It is then a matter of professional judgment rather than governmental discretion as to whether a certain sign should be placed.

2. Where a plaintiff claims both the county's and the township's failure to warn him, as required by the Manual on Uniform Traffic Control Devices, of a hazard that was not self-evident caused his injuries, it is necessary to determine: (1) what governmental entities are responsible for the safety of travelers upon the road; (2) whether or not a hazard exists; (3) whether or not the hazard is self-evident; and (4) if the hazard is not self-evident, whether the responsible governmental entity made the correct decision in determining the proper signs or barricades needed to warn travelers in order to provide adequate time for the driver to perceive, identify, decide, and perform any necessary maneuver.

3. One person's negligence is not the proximate or direct cause of an injury where there is a new, separate, wholly independent, and efficient intervening cause of the injury and the loss.

4. For negligence to exist, there must be a duty and a breach thereof before the conduct becomes actionable. If no duty exists, there can be no negligence.

5. Under the facts of this case it cannot be said as a matter of law that the failure of the Township to erect a dead-end sign at the entrance of the township road or a barricade where the road terminated in a dead end constituted an exercise of discretion, thus making the Township immune from suit under the Kansas Tort Claims Act.

Bruce C. Barry, of Bengtson, Waters, Thompson and Barry, Chartered, Junction City, argued the cause, and Roger D. Thompson, was on brief for appellant.

John D. Conderman, of Arthur, Green, Arthur and Conderman, Manhattan, argued the cause and was on brief for appellee Clay County, Kan.

J. Franklin Hummer, of Davis, Unrein, Hummer and McCallister, Topeka, argued the cause and was on brief for appellee Mulberry Tp. of Clay County, Kan.

LOCKETT, Justice:

Plaintiff drove his pickup truck over the end of a township road into a dry river bottom. He sued both the county and the township for injuries suffered, claiming they had failed to post proper warning signs. The district court granted summary judgment to the defendants after determining that under the Kansas Tort Claims Act, K.S.A. 75-6101 et seq., they were immune from liability because the signing of a road was a discretionary function. K.S.A. 75-6104. The plaintiff appeals.

On February 5, 1982, plaintiff, Craig Finkbiner, was traveling in his pickup truck south on Clay County road No. 827. As he approached the intersection of Clay County roads No. 827 and No. 368 from the north, he viewed a cross-intersection sign. Clay County road No. 368 is a gravel road which goes west. The road going east from the intersection is a dirt road maintained by Mulberry Township. A "T" intersection sign, indicating no eastbound road, had been placed by the County on the highway for traffic going north on 827.

Finkbiner turned east on the township road, a road he had not traveled previously, planning to connect with a southbound road a mile east. There were no signs or ditches along this stretch of the township road. Approximately three-quarters of a mile from the intersection, the township road terminated with a drop-off into the old riverbed of the Republic River. Finkbiner, who was driving approximately 45-50 miles per hour, drove over the end of the road into the river bottom, damaging his truck and suffering personal injuries.

Finkbiner brought suit against both Clay County (County) and Mulberry Township (Township) claiming they failed to properly place warning signs in accordance with statutory requirements. The County and the Township filed separate motions for summary judgment, each alleging that the placement or the failure to place a warning sign by the local governmental entity was a discretionary act. Therefore, they contended K.S.A. 75-6104(d) of the Kansas Tort Claims Act prohibited this action against both the County and the Township. The district court sustained both motions for summary judgment, and the plaintiff appeals.

Summary judgment is proper if no genuine issue of fact remains, giving the benefit of all inferences which may be drawn from the admitted facts to the party against whom judgment is sought. A trial court, in ruling on motions for summary judgment, should search the record to determine whether issues of material fact do exist. When summary judgment is challenged on appeal, an appellate court must read the record in the light most favorable to the party who defended against the motion for summary judgment. McAlister v. Atlantic Richfield Co., 233 Kan. 252, 662 P.2d 1203 (1983).

On appeal, Finkbiner raises two issues. He contends that the district court erred in finding that under K.S.A. 75-6104(d) the Township and the County were immune from suit for failure to place signs warning that the township road was a dead end. He also contends that the district court erred in finding that Clay County was not negligent in placing a cross-intersection sign for southbound traffic while placing a "T" intersection sign indicating no eastbound road for northbound traffic.

Historically, the common law placed a duty on governmental entities to keep their streets reasonably safe for use. See Schmeck v. City of Shawnee, 232 Kan. 11, 17, 651 P.2d 585 (1982). Before 1887, counties and townships, being quasi-corporate subdivisions of the state, were not liable in damages for any injuries sustained because of the negligence of their officers or employees in the construction or maintenance of highways. In 1887, the legislature, by enactment of L.1887, ch. 237, saw fit to make counties and townships liable, under certain enumerated circumstances. K.S.A. 68-301 (Weeks) (repealed, L.1979, ch. 186, § 33) imposed liability for defects on county and township roads. See, e.g., Hampton v. State Highway Commission, 209 Kan. 565, 498 P.2d 236 (1972). In Grantham v. City of Topeka, 196 Kan. 393, Syl. p 2, 411 P.2d 634 (1966), this court held that the means selected by the state or a city in the control and regulation of traffic under the police power is a governmental function. We said a governmental entity is not liable for the negligent acts of its officers or employees in the performance of a governmental function; however, an exception is recognized with respect to defects in public streets on the theory they are necessary for public use at all times and under all conditions. 196 Kan. 393, Syl. p 3.

Governmental liability is now covered by the Kansas Tort Claims Act (KTCA), enacted in 1979, which permits recovery of damages from a governmental entity when damages are "caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment under circumstances where the governmental entity, if a private person, would be liable under the laws of this state." K.S.A. 75-6103. Exceptions to this general liability are set forth in K.S.A. 75-6104.

Here, the district court determined that the County and Township were immune under 75-6104(d) of the KTCA from any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee. The plaintiff argues that it was not discretionary with the governmental entities to place the signs and that, based on the totality of the circumstances, the county and township had a statutory duty to place the proper warning signs to protect the public traveling on the roads.

It is undisputed that Mulberry Township is responsible for the road going east of the intersection of county roads 827 and 368. Originally, there were two homesteads along the township road, but both were abandoned in the 1930's. The road is used mainly by local farmers to get their equipment to land under cultivation. It was unknown if any accidents had ever occurred on the road. No citizens in the county had ever requested that the road be inspected for safety purposes or that signs be erected along the road. Because of limited funds available for road improvement, the township board determined on a priority basis what road improvements were scheduled each year. Due to the low volume of traffic on the township road, improvements on it would not have been scheduled.

To determine whether or not the County's and the Township's liability for failure to place a sign is within the exercise of discretion which is excepted from liability by the KTCA, we first must examine the statutory duties imposed upon the County and the Township for placing and maintaining traffic-control devices upon their roads.

The secretary of transportation is required by the legislature to adopt a manual and specifications for a statewide uniform system of traffic-control devices. K.S.A. 8-2003. To carry out the policy declared by the legislature, the secretary adopted the Manual on Uniform Traffic Control Devices for Streets and Highways (MUTCD) published by the United States Department of Transportation. Local authorities are required by the legislature to place and maintain such traffic-control devices upon the highways under their jurisdiction as they may deem necessary to indicate and carry out the provisions of the act or local traffic ordinances or to regulate, warn or guide traffic. K.S.A. 8-2005.

When the district court determined that the County and Township were granted absolute immunity for the placement of signs upon their roads under the exception to KTCA for discretionary functions, it failed to distinguish this case from...