Hurst v. Board of Com'rs of Pulaski County, 485S157

• Decision Date: 22 April 1985
• Docket Number: No. 485S157,485S157
• Parties: Edward HURST, Individually and as Next Friend of Michael Hurst, Edward Hurst and Kathryn Butler, as Co-Special Administrators of the Estate of Linda Hurst, Deceased and Edward Hurst, as Father of Edward Hurst, Jr., Deceased, and Thomas Hurst, Deceased, Appellants, v. The BOARD OF COMMISSIONERS OF The COUNTY OF PULASKI and Pulaski County, Indiana, Appellees.
• Court: Indiana Supreme Court

Page 832

476 N.E.2d 832

Edward HURST, Individually and as Next Friend of Michael

Hurst, Edward Hurst and Kathryn Butler, as Co-Special Administrators of the Estate of Linda Hurst, Deceased and Edward Hurst, as Father of Edward Hurst, Jr., Deceased, and Thomas Hurst, Deceased, Appellants, v. The BOARD OF COMMISSIONERS OF The COUNTY OF PULASKI and Pulaski County, Indiana, Appellees.

No. 485S157.

Supreme Court of Indiana.

April 22, 1985.

Thomas W. Ward, Knox, for appellants.

Miller, Tolbert, Wildman, Muehlhausen & Muehlhausen, P.C., Logansport, for appellees.

PETITION FOR TRANSFER

GIVAN, Chief Justice.

This case comes before this Court on appellee's Petition for Transfer. We grant the Petition and thereby vacate the decision of the Court of Appeals reported at 446 N.E.2d 347.

On October 1, 1977, appellant Edward Hurst was involved in a two-car accident at the intersection of County Roads 700 North and 300 West in Pulaski County. Hurst was driving along County Road 300 West when he stopped for a stop sign at the intersection. He claims his view west was obstructed by weeds and tall growth on the highway right-of-way. He proceeded into the intersection where he collided with a pickup truck coming from the west.

Hurst brought this action against the Pulaski County Board of Commissioners alleging: 1) that the Board has a duty to remove weeds and growth from the right-of-way along county highways pursuant to Ind.Code Sec. 8-17-14-1; 2) that the Board has a common law duty to remove weeds and natural growth from along county highway rights-of-way for the protection of motorists; 3) that the Board negligently maintained an inherently dangerous intersection.

The trial court awarded summary judgment for the Board on all theories. In so doing, the trial court held that there was a statutory duty to cut the weeds; however, it had been met in this instance. The court further held there was no common law duty to cut weeds and that the intersection was not inherently dangerous as it is like many other county highway intersections.

The Court of Appeals reversed and remanded the case finding that there is no statutory duty to cut weeds, but that there is a common law duty to maintain the highway in a safe condition for reasonable use. The Court of Appeals further held that the question of whether the cutting of the weeds is within the duty to maintain a safe highway is a question of fact for the jury and not a question of law. Thus the Court of Appeals ruled summary judgment was improper. It further held that there was a factual dispute as to whether the weeds had in fact been cut. Thus the trial court improperly granted summary judgment on the issue of the common law duty to maintain a safe highway.

We hold the question of whether a common law duty exists is a matter of law and not of fact. The question was within the province of the court and not the jury. Miller v. Griesel (1974), 261 Ind. 604, 308 N.E.2d 701. There this Court stated:

"There are three questions of law to be decided by the trial court concerning these elements before it may submit the " 'The duty to exercise care for the safety of another arises as a matter of law out of some relation existing between the parties, and it is the province of the court to determine whether such a relation gives rise to such duty.' Neal v. Home Builders [ (1953) 232 Ind. 160, 111 N.E.2d 280], supra." 261 Ind. at 611, 308 N.E.2d at 706.

case to the jury. The first is whether the law recognizes any obligation on the part of a particular defendant to conform his conduct to a certain standard for the benefit of the plaintiff.

The trial court had both the power and the duty to determine whether the county had a duty to remove vegetation at an intersection of two county roads to facilitate improved visibility. The trial court did not err when it ruled on this question. We hold there is no common law duty on the part of county government to remove weeds and vegetation at intersections in order to facilitate improved visibility.

We are pursuaded by the public policy arguments against finding a duty of this nature. We believe these arguments were well stated by the Wisconsin Supreme Court in Walker v. Bignell (1981), 100 Wis.2d 256, 301 N.W.2d 447. There the court stated:

"[W]e prefer to declare directly that, as a matter of public policy, municipalities should not be exposed to common law liability under the circumstances present in this...