Fisher v. County of Rock

• Decision Date: 15 July 1999
• Docket Number: No. C6-97-2263.,C6-97-2263.
• Citation: 596 N.W.2d 646
• Parties: Peggy FISHER, as Trustee for the Heirs and Next of Kin of Ryan Lee Fisher, Decedent, Appellant, v. COUNTY OF ROCK, Respondent.
• Court: Minnesota Supreme Court

596 N.W.2d 646

Peggy FISHER, as Trustee for the Heirs and Next of Kin of Ryan Lee Fisher, Decedent, Appellant, v. COUNTY OF ROCK, Respondent.

No. C6-97-2263.

Supreme Court of Minnesota.

July 15, 1999.

James E. Malters, Gordon L. Moore, III, Von Holtum, Malters & Shepherd, Worthington, for appellant.

Arvid Wendland, David Wendorf, Wendland Beattie Timmerman, Blue Earth, for respondent.

Heard, considered, and decided by the court en banc.

OPINION

PAUL H. ANDERSON, Justice.

Peggy Fisher appeals a decision granting summary judgment in favor of respondent Rock County, which decision was based on the grounds that Fisher's wrongful death claim is barred by Minnesota's statute of repose for improvements to real property. Minn.Stat. § 541.051 (1998). Fisher argues that her claim is not barred because the county's failure to install approach guardrails at the bridge where her son's fatal car crash occurred falls under the maintenance exception to the statute. See Minn.Stat. § 541.051, subd. 1(c). The county argues that summary judgment was appropriate and further asserts that the district court should also have granted summary judgment in favor of the county based on statutory immunity. We hold that the county is entitled to statutory immunity and, therefore, we reverse the district court's denial of summary judgment on those grounds. Because we conclude the county is entitled to statutory immunity, we do not reach Fisher's argument that failure to install approach guardrails at the bridge site falls within the maintenance exception to the statute of repose.

Nineteen-year-old Ryan Lee Fisher was killed on July 24, 1996, when the car he was driving collided with the end of a bridge rail on Rock County Bridge 5857. At the time of the collision, Ryan Fisher was proceeding in a northerly direction on County State Aid Highway (CSAH) 3. A piece of the bridge railing entered the driver's side of the car, killing Ryan Fisher. Three other passengers who were in the car at the time of the collision also were injured. One of the passengers told police that the collision occurred after Ryan Fisher turned around to hand the passenger a pair of sunglasses.

Within a year after the accident, Ryan's mother, Peggy Fisher, brought a wrongful death action against the county, claiming the county negligently maintained Bridge 5857 by failing to install approach guardrails at the bridge site or adequately warn drivers that the bridge was hazardous. In response to the action, the county moved for summary judgment, asserting that Fisher's claim was barred by Minn.Stat. § 466.03, subd. 6 (1998), statutory immunity, and by Minn.Stat. § 541.051, which imposes a 10-year statute of repose for actions arising out of improvements to real property. Fisher claimed that the county was not entitled to statutory immunity and that the county's failure to install approach guardrails at Bridge 5857 fell under the maintenance exception to the statute of repose. As a part of this lawsuit, deposition testimony was taken from, among others, two of the county's highway engineers, and affidavits were offered from one of the county's highway engineers and by both parties' highway engineering experts. The testimony and affidavits provided information about Bridge 5857, the process used by the county to determine when a bridge needs to be replaced, and the county's policies concerning bridge maintenance and replacement.

Bridge 5857 is a timber-span bridge that was built in 1939 in accordance with the engineering standards in place at that time. The bridge deck is covered with asphalt and is 55.6 feet long and 23.2 feet wide curb to curb. The bridge width includes two 11-foot-wide traffic lanes. The traffic lanes approaching the bridge from either the north or the south are also each 11 feet wide. The shoulder on either side of CSAH 3 is 3-4 feet wide, but narrower at the bridge site. Clearance on either side of the traffic lanes on the bridge deck is between 6 and 12 inches. The highway is essentially flat and straight on each side of the bridge, but there is a 42-minute angle (approximately 2/3 of one degree) in the highway approximately 200 feet north of the bridge. Fisher's highway engineering expert offered affidavit testimony in which he apparently stated that the effects of this angle are that the bridge rail is within the normal path of vehicles travelling northbound along the right side of the highway and that drivers who fail to adjust to this slight "jog" in the highway will collide with the end of the bridge rail. The county disputes this characterization and contends that there is no such effect on northbound drivers because the highway is straight travelling in that direction until 200 yards beyond the bridge.

The bridge itself was designed with and is equipped with timber bridge rails on both sides of the bridge. The bridge rails extend the length of the bridge deck. Approach guardrails were not a part of the bridge's original design and have never been added to the bridge site. William Kline, the county's highway engineering expert, stated in his affidavit that if Bridge 5857 were to be replaced today, "it would be wider than the outside edge of the shoulders and would have approach guardrail."

Bridge 5857 was damaged in at least six separate accidents between 1980 and the time of Ryan Fisher's accident in 1996. After each accident the county repaired the damage, restoring the bridge to its as-built condition. Although the county concedes that this is an unusually high number of accidents for one bridge, county highway engineers have been unable to identify a specific reason or reasons for this sequence of events. Of the six accidents, two drivers fell asleep at the wheel, one was driving under the influence of alcohol, one was reaching for a checkbook on the floorboard, one was flipping over a cassette tape, and one swerved to avoid hitting a deer. Only one of the six accidents involved a collision with the end of the bridge rail. In the other five accidents, the vehicles collided with other parts of the bridge rail after entering the bridge deck.

While the county has never altered the bridge itself, additional signage has been placed at the bridge site. The driver of a car involved in an accident on the bridge in 1983, the third accident since 1980, stated in an affidavit that following his accident the county placed additional reflectors at the bridge ends. However, the record does not indicate whether the reflectors referred to by that driver are the four "type three" object markers that have been located at each end of the bridge at all times material to this action. These markers are metal signs, 12 inches wide by 36 inches tall with black and yellow diagonal stripes, and are mounted on metal poles. Type three object markers are used to identify fixed objects adjacent to the roadway and are an authorized method of signage under the Minnesota Manual on Uniform Traffic Control Devices, Minnesota's guide to proper highway signage. In 1994, following the fifth accident on the bridge, the county added horizontal object markers (horizontal delineators) to each corner of the bridge. The horizontal delineators consist of 2-inch by 12-inch boards that are connected to the bridge rail ends. Photographs indicate that the horizontal delineators extend from the bridge rails at a 45-degree angle away from the highway and are approximately 8-10 feet in length. They are painted black and are diagonally striped with reflective yellow tape. Following Ryan Fisher's accident, the county placed two additional type three object markers in front of each of the four corners of the bridge.

The county is required by both state and federal law to inspect its bridges on a regular basis. The county's bridge inspector must be certified by the Minnesota Department of Transportation (MnDOT). When a bridge is inspected, the bridge inspector, using the criteria set out in MnDOT inspection manuals and reporting forms, assigns a numerical score to each of the required criteria and submits the inspection form to the MnDOT Bureau of Engineering and Operations Office of Bridges and Structures. This bureau then prepares a structure inventory form and converts the raw scores provided by the bridge inspector to a standardized score of 0-100, based on a written protocol designed by the Federal Highway Administration. This standardized score is called a sufficiency rating. The bridge is also assigned a status of "adequate" or "deficient." After Bridge 5857's regular inspection on October 18, 1995, nine months prior to Ryan Fisher's accident, its sufficiency rating was 56.2 and its status was "adequate."

Federal replacement or rehabilitation funds, as well as state highway funds, are made available to the county based on a bridge's sufficiency rating and status. To be eligible for bridge replacement funds, a bridge must be "deficient" and have a sufficiency rating of less than 50. To be eligible for bridge rehabilitation funds, a bridge must be "deficient" and have a sufficiency rating of less than 80. Eligibility of a bridge for funding does not mean that federal and state funds are automatically made available. Rather, the need to fund replacement or rehabilitation of a given bridge is compared with the need to fund replacement or rehabilitation of all other eligible bridges statewide. Only when the need for replacement or rehabilitation of a particular bridge is deemed greater than the need for replacement or rehabilitation of all other eligible bridges will federal and state funds be made available for the project. Mark Sehr, the county's highway engineer, stated in his affidavit that, in his experience, a bridge replacement project is unlikely to receive federal and state funds unless its sufficiency rating falls below 40 and its status is "deficient." Bridge 5857 is not yet eligible for federal and state bridge replacement funds. Current projections by MnDOT...