Fritz v. Howard Tp., 19935
| Decision Date | 09 September 1997 |
| Docket Number | No. 19935,19935 |
| Parties | Dorothy R. FRITZ and Gordon Fritz, Plaintiffs and Appellants, v. HOWARD TOWNSHIP and Howard Township Board of Township Supervisors, Defendants and Appellees. . Considered on Briefs |
| Court | South Dakota Supreme Court |
Gary W. Conklin of Galland Legal Clinic, Sioux Falls, for plaintiffs and appellants.
Douglas M. Deibert of Cadwell Sanford Deibert & Garry, Sioux Falls, for defendants and appellees.
¶1 Summary judgment was granted to Township in personal injury action brought by motorist injured on unmarked, unguarded, washed-out township road. The trial court ruled that 1) Township met its duty by posting a warning sign, and 2) unless Township had actual knowledge that the sign was missing, it owed no further duty to the plaintiff. We reverse and remand for trial.
¶2 Joanne Farke is the clerk for the Howard Township Board of Township Supervisors (Board) in Charles Mix County. On a Sunday afternoon in February of 1994, a township resident telephoned Farke at home to inform her that a section of a township road was washed out. After trying unsuccessfully to reach other Board members, Farke and her family constructed two "Road Closed" signs with their own boards and fluorescent paint. They mounted the signs on steel fence posts and placed them at the east and west ends of the mile-long road, pounding them several inches into the center of the road. Farke testified they placed the signs in the middle of the road "so vehicles would have to drive around them." No signs, guards, or barriers were erected near or immediately by the washout because "[the road] was used for farm use."
¶3 Farke informed the Board, which attempted to have the road repaired. No repairs were possible until the gravel pits thawed, so the road remained washed out until the summer. The Board did not post signs other than those erected by the Farke family.
¶4 Sometime after midnight on March 27, 1994, Dorothy Fritz was traveling east on a township road. She stopped at a stop sign before crossing a county road. Farkes had placed the west sign directly east of this intersection; however, it is undisputed that it was not present when Fritz entered that section of the road. Traveling between forty and forty-five miles per hour, her vehicle struck the washout. This was approximately a quarter of a mile east of the intersection. Fritz suffered serious physical injuries and her automobile was severely damaged.
¶5 According to Fritz, the washout covered over half of the roadway and was approximately fifteen to twenty feet long, ten feet wide, and seven feet deep. Township does not dispute these measurements.
¶6 The west sign was apparently knocked over by farm equipment or other traffic prior to March 27, and a portion of it was later recovered from the ditch. Farke replaced it with another homemade sign after Fritz was injured.
¶7 Fritz sued Howard Township for failure to maintain its roads. She claimed it was negligent in its failure to properly sign the road and in failing to place a guard at or over the washed-out section of the road. The trial court granted Township's motion for summary judgment, ruling that it met its duty by posting the sign. The court held, that in the absence of actual knowledge that the sign was knocked down, Township owed no further duty. Fritz appeals.
¶8 Our review of summary judgment is well settled:
In reviewing a grant or a denial of summary judgment under SDCL 15-6-56(c), we must determine whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law. The evidence must be viewed most favorably to the nonmoving party and reasonable doubts should be resolved against the moving party. The nonmoving party, however, must present specific facts showing that a genuine, material issue for trial exists. Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied. [If not,] if there exists any basis which supports the ruling of the trial court, affirmance of a summary judgment is proper.
In reviewing a grant of summary judgment, we conduct an independent review of the record. Finally, "the burden of proof is upon the movant to show clearly that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law[.]" State Dep't of Revenue v. Thiewes, 448 N.W.2d 1, 2 (S.D.1989) (citation omitted).
Walz v. Fireman's Fund Ins. Co., 1996 SD 135, p 6, 556 N.W.2d 68, 70 (). If there are no genuine issues of material fact present in this case, then summary judgment will be affirmed if the trial court correctly decided the legal issues presented. Weiss v. Van Norman, 1997 SD 40, p 9, 562 N.W.2d 113, 115 (citations omitted). Generally, whether a duty exists is a question of law which we review de novo. City of Colton v. Schwebach, 1997 SD 4, p 8, 557 N.W.2d 769, 771.
¶9 1. WHETHER THE HOMEMADE SIGN FULFILLED TOWNSHIP'S DUTY TO GUARD AND SIGN THE UNREPAIRED DEFECT.
¶10 In its memorandum decision, the trial court incorrectly concluded that "this is not a case where the adequacy, design, type, or conspicuousness of the sign is at issue." (Emphasis in original). Whether the homemade sign was in compliance with certain statutory directives is a primary issue.
¶11 It is undisputed that Township has a duty to maintain township roads. See SDCL 31-13-1, which provides in relevant part: "The board of township supervisors shall construct, repair, and maintain all of the secondary roads within the township." If a road falls out of repair, 1 certain other duties are implicated.
¶12 First, the Township must act promptly to prevent accidents and injuries by erecting a guard either over the defect or across the road:
If any highway, culvert, or bridge is damaged by flood, fire or other cause, to the extent that it endangers the safety of public travel, the governing body responsible for the maintenance of such highway, culvert, or bridge, shall within forty-eight hours of receiving notice of such danger, erect guards over such defect or across such highway of sufficient height, width, and strength to guard the public from accident or injury and shall repair the damage or provide an alternative means of crossing within a reasonable time after receiving notice of the danger. The governing body shall erect a similar guard across any abandoned public highway, culvert, or bridge. Any officer who violates any of the provisions of this section commits a petty offense.
SDCL 31-32-10 (emphasis added); see Kiel v. DeSmet Township, 90 S.D. 492, 496, 242 N.W.2d 153, 155 (1976):
Obviously, the main obligation of a county under this statute [SDCL 31-32-10] is to repair all defects in a county highway which endanger the safety of public travel. Incidentally the statute also imposes a secondary duty upon the county to erect temporary guards over defects, where needed, until repairs are made.
(Citation omitted).
¶13 Second, SDCL 31-28-6 provides for the placement of a warning sign for the benefit of approaching traffic:
The public board or officer whose duty it is to repair or maintain any public highway shall erect and maintain at points in conformity with standard uniform traffic control practices on each side of any sharp turn, blind crossing, or other point of danger on such highway, except railway crossings marked as required in § 31-28-7, a substantial and conspicuous warning sign, which sign shall be on the right-hand side of the highway approaching such point of danger. A violation of this section is a Class 1 misdemeanor.
(Emphasis added).
¶14 The trial court concluded that since Township did not have actual knowledge that the sign was missing, there was "no reason for a jury to speculate on whether the missing sign was adequate." We disagree.
¶15 When "shall" is the operative verb in a statute, it is given "obligatory or mandatory" meaning. See In re Groseth Int'l, Inc., 442 N.W.2d 229, 231-32 (S.D.1989) (). 2 The two statutes obligated Township to 1) erect a guard across the washout or across the highway, and 2) erect and maintain a "substantial and conspicuous" warning sign which conformed with "uniform traffic control practices." The guard must be of "sufficient height, width, and strength to guard the public...." Whether the sign conformed to the standards provided in these statutes presents a question for the jury. Kiel, 90 S.D. at 497, 242 N.W.2d at 156. 3
¶16 Fritz claims, and Township concedes, that the reference in SDCL 31-28-6 to "uniform traffic control practices" dictates that the sign conform to the Manual on Uniform Traffic Control Devices (MUTCD). 4 See 23 CFR § 655.601-07. The MUTCD is a national publication promulgated by the Federal Highway Administration and is the "national standard for all traffic control devices installed on any street, highway, or bicycle trail open to public travel[.]" Id. § 655.603(a). The States may draft their own manual, so long as it is in "substantial conformance" with the national MUTCD, id. § (b), but are encouraged to adopt the national version. South Dakota adopted the national version. See SDCL 31-28-11: "On any street or road constructed with federal aid, the location, form, character of informational regulatory warning signs, curb and pavement or other markings and traffic signals, shall conform to uniform national signing standards." 5 It is a question of fact whether this sign conformed...
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