Hurst v. Board of Com'rs of Pulaski County

Citation446 N.E.2d 347
Decision Date16 March 1983
Docket NumberNo. 3-882A219,3-882A219
PartiesEdward 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 (Plaintiffs Below), v. The BOARD OF COMMISSIONERS OF the COUNTY OF PULASKI and Pulaski County, Indiana, Appellee (Defendant Below).
CourtCourt of Appeals of Indiana

Thomas W. Ward, Knox, for appellants.

Frank E. Tolbert, Miller, Tolbert, Wildman, Muehlhausen & Muehlhausen, P.C., Logansport, for appellee.

HOFFMAN, Presiding Judge.

On October 1, 1977, appellant 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. Hurst's view west was obstructed by weeds and tall growth so he proceeded slowly into the intersection. Once into the intersection he observed a pickup truck bearing down on his vehicle, from the west. He unsuccessfully attempted to avoid being hit.

Hurst brought suit against the Pulaski County Board of Commissioners (Board) alleging three theories of recovery. First, he contends that the Board has a duty to remove weeds and growth from along county rights-of-way pursuant to Ind.Code Sec. 8-17-14-1 (Burns Code Ed.). Second, the Board has a common-law duty to remove weeds and natural growth from along county rights-of-way for the protection of motorists. Finally, the Board negligently maintained an inherently dangerous intersection. The trial court awarded summary judgment for the Board on all theories, and this appeal results.

On appeal Hurst raises four issues:

(1) whether Ind.Code Sec. 8-17-14-1 places a duty upon the county to remove weeds and natural growth from along county roadways for the benefit of motorists;

(2) whether the trial court erred in granting the Board's motion for summary judgment on the factual issue as to whether the weeds had been cut by the county;

(3) whether the Board has a common-law duty to remove weeds and natural growth from along county roadways to prevent the obstruction of a motorist's view; and

(4) whether the trial court erred in reopening the Board's motion for summary judgment which had been denied and having a hearing on the reopened motion without proper notice to appellant.

When reviewing a grant or denial of summary judgment, this Court must determine: 1) whether there existed any genuine issue of material fact; and 2) whether the trial court correctly applied the law. Perry v. Northern Ind. Pub. Serv. Co. (1982), Ind.App., 433 N.E.2d 44; Wallace v. Indiana Ins. Co. (1981), Ind.App., 428 N.E.2d 1361. The movant has the burden of establishing that no genuine issue of material fact exists and all doubts shall be resolved against him. F.W. Means & Co. v. Carstens (1981), Ind.App., 428 N.E.2d 251; Smith v. P. & B. Corp. (1979), Ind.App., 386 N.E.2d 1232.

Hurst argues that the trial court misconstrued Ind.Code Sec. 8-17-14-1. According to Hurst this provision places a duty upon the county to remove growth along roadways so that it does not obstruct the view of motorists. He further contends that this activity must take place as often as reasonably necessary within the statutory time period set out in the provision.

In support of his argument appellant refers us to Ind.Code Sec. 8-3-7-1 (Burns Code Ed.) and the case of Johnson v. Baltimore & O.R. Co. (7th Cir.1976) 528 F.2d 1313, interpreting that particular code section. This statutory provision places upon railroads the duty to remove weeds and vegetation from along their rights-of-way. In Johnson the plaintiff was struck by defendant's train. Johnson claimed he could not see the train coming as he approached the tracks because his view was obstructed by weeds along the right-of-way. The Seventh Circuit Court of Appeals held that while the primary duty imposed by the statute extended to contiguous landowners the breach of that duty was a cause of plaintiff's injury; thus, he could recover from the railroad.

This Court respectfully suggests that the Seventh Circuit Court of Appeals erred in its application of basic tort law principles. In order for a person to be liable for another's injury due to his acts, he must owe that person some duty of care. Regardless of causation liability arises out of duty. Edler, Receiver v. Rutledge, Admx. (1940), 217 Ind. 459, 27 N.E.2d 358; Crouch v. Hall (1980), Ind.App., 406 N.E.2d 303.

Under Ind.Code Sec. 8-17-14-1 at issue the county has a duty to remove weeds and other obnoxious natural growth from along county roadways from June 15 to September 1 each year. It is important to note that the time period mandated by the statute roughly corresponds to the growing season and places a duty on the county to remove these weeds prior to the peak pollinating season. Thus it appears the purpose of the statute is to reduce the spread of weeds and other obnoxious growth to surrounding farmland. In the Johnson case the Seventh Circuit Court of Appeals held a similar statute imposed such a duty on railroads for the benefit of surrounding landowners.

Further support for this construction may be found in the code. Ind.Code Sec. 32-10-4-1 (Burns Code Ed.) imposes a duty on the state to trim natural growth along curves and intersections to prevent it from obstructing a motorist's view. This provision specifically applies only to intersections of state highways with other state highways, county or township highways, and railroads. No comparable provision is found under the articles applicable to maintenance of county roads. Had the Legislature intended that the counties have such a statutory duty, it would have included county intersections in the above-mentioned statutory provision or included a comparable provision under the article on county highways. Since the Legislature has failed to do so, this Court concludes that it was not its intent to create such a duty by enacting Ind.Code Sec. 8-17-14-1.

Further, the statutory period prescribed in Ind.Code Sec. 8-17-14-1 runs from June 15 to September 1, and appellant's accident occurred on October 1. Even if the statute did create a duty which extended to motorists, appellant's suit would be barred by operation of the statute. The county's duty to cut the weeds operates from June 15 to September 1. Since appellant's accident occurred on October 1, it owes him no duty under this statute for this additional reason. Bd. of Comr's of Monroe Cty. v. Hatton (1981), Ind.App., 427 N.E.2d 696, at 700 n. 4. Therefore, summary judgment was correctly granted the Board as a matter of law as it owes no duty to appellant under the statute.

Appellant next contends that summary judgment was improper on the factual issue of whether the county had cut the weeds. A resolution of this issue is unnecessary in terms of the duty owed appellant under the statute since he was not owed any duty. However, a discussion of this question is relevant to any common-law duty the county may have to clear growth from along the roadway for the benefit of motorists.

In its memorandum of opinion the trial court set out its support for summary judgment on factual grounds as follows:

"[T]he Court does believe that the statute 8-17-14-1 does place a duty upon the Commissioners and specifies how that duty may be met. The Court is convinced that the only evidence relating to the County's performance of its mowing obligation clearly shows that the road was mowed and that the County fulfilled its duty."

Record at 440.

The evidence upon which the trial court's decision is based consists of testimony, in the form of two affidavits, of Arthur Snider, Highway Superintendent of Pulaski County. In these affidavits Snider states that the weeds along County Roads 300 West and 700 North were mowed during the statutory period. However, Snider also makes the further statement:

"The intersection of CR 300 W & 700 N was mowed once in 1977. I do not know when it was mowed that year.... I can't really say for sure if 300 W and 700 N were mowed in 1977. There would be no way of telling. We did not keep a chart or record of which roads had been mowed that year. I think 300 W was probably mowed that year, because it is the first black top road going all the way north from highway 14. I never knew or seen a chart or record of what roads had been cut or mowed in this year, prior years or later years."

Record at 125A-126.

Statements in an affidavit must be based upon personal knowledge in order to be admissible. Coghill v. Badger (1982), Ind.App., 430 N.E.2d 405; Whitaker v. St Joseph's Hospital (1981), Ind.App., 415 N.E.2d 737; Podgorny v. Great Central Ins. Co. (1974), 160 Ind.App. 244, 311 N.E.2d 640. The court should disregard inadmissible statements when determining whether to grant or deny a summary judgment. Cunningham v. Associates Cap. Ser. Corp. (1981), Ind.App., 421 N.E.2d 681; Pathman Const. Co., etc. v. Drum-Co Engin. (1980), Ind.App., 402 N.E.2d 1.

In his affidavit Snider first states that he knows the weeds at issue were cut; he then goes on to admit he has no way of personally knowing whether the weeds were cut. Allowing such testimony to serve as the basis for summary judgment would contravene the purpose of Ind.Rules of Procedure, Trial Rule 56(E). Absent Snider's testimony there is no evidence before the court at the time of the hearing to support its conclusion that the county had mowed the weeds. 1 Therefore, summary judgment was improperly granted on this factual issue.

At the hearing appellant also forwarded the theory that the county had a common-law duty to remove obstructing growth from along roadways for the benefit of motorists. He contends the county failed to perform this duty and consequently maintained an inherently dangerous intersection causing the accident and...

To continue reading

Request your trial
11 cases
  • Wisconics Engineering, Inc. v. Fisher
    • United States
    • Court of Appeals of Indiana
    • July 31, 1984
    ...motion to correct error does not comply with rules regarding newly discovered evidence. Kahf, supra; Hurst v. Board of Commissioners (3d Dist.1983) Ind.App., 446 N.E.2d 347, 351 fn. 1. The trial court committed no error by its refusal to consider appellants' additional evidence; neither may......
  • State v. Herzog
    • United States
    • Court of Appeals of Washington
    • February 16, 1994
    ...... previously had been charged with a sex crime in King County. His ex-stepson was the alleged victim, and the charge ......
  • Donaca v. Curry County
    • United States
    • Court of Appeals of Oregon
    • April 22, 1986
    ...amounted to a breach of the duty of reasonable care owed to a traveller on a county road. He relies on Hurst v. Board of Com'rs of Pulaski County, Ind.App., 446 N.E.2d 347 (1983). However, that case was reversed on appeal. The Indiana Supreme Court held that "the question of whether a commo......
  • City of Tell City v. Noble, 4-1184
    • United States
    • Court of Appeals of Indiana
    • March 10, 1986
    ...public. Such expressions are found in State v. Edgman (1983), Ind.App., 447 N.E.2d 1091, trans. denied; Hurst v. Board of Commissioners of Pulaski County (1983), Ind.App., 446 N.E.2d 347, aff'd. on other grounds, (1983) 476 N.E.2d 832; City of Indianapolis v. Swanson (1982), Ind.App., 436 N......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT