Nusbaum v. Blue Earth County

• Decision Date: 22 April 1988
• Docket Number: No. C3-87-338,C3-87-338
• Citation: 422 N.W.2d 713
• Parties: Ralph S. NUSBAUM, Respondent, v. COUNTY OF BLUE EARTH and State of Minnesota, Petitioners, Appellants.
• Court: Minnesota Supreme Court

Page 713

422 N.W.2d 713

Ralph S. NUSBAUM, Respondent, v. COUNTY OF BLUE EARTH and State of Minnesota, Petitioners Appellants.

No. C3-87-338.

Supreme Court of Minnesota.

April 22, 1988.

Syllabus by the Court

1. Plaintiff's negligence action against the State of Minnesota, based on a state traffic engineer's decision on where to place a sign marking the end of a reduced speed zone on County State-Aid Highway No. 48, was not barred by the discretionary function exception to government tort liability, Minn.Stat. Sec. 3.736, subd. 3(b) (1986). The engineer's signing decision, which did not involve any policy considerations in this case, was not the type of judgment protected by the discretionary function exception.

2. The state owed plaintiff a duty to exercise reasonable care in determining whether to authorize Blue Earth County's request for a reduced speed zone on County State-Aid Highway No. 48. Such a duty included the exercise of reasonable care in determining where to place the signs marking the end of the reduced speed zone.

Hubert H. Humphrey, III, Atty. Gen., Lori M. Mittag, Sp. Asst., St. Paul, for petitioners, appellants.

Bailey W. Blethen, Stephen P. Rolfsrud, Mankato, for respondent.

Considered and decided by the court en banc without oral argument.

YETKA, Justice.

This appeal is from a decision of the court of appeals which reversed a lower court order granting summary judgment for defendant State of Minnesota. The case arose out of an automobile accident on August 2, 1983, in which plaintiff Ralph S. Nusbaum failed to negotiate a sharp curve while driving on Blue Earth County Road 48. Nusbaum brought this tort action against the State of Minnesota and Blue Earth County. Nusbaum settled with the county, but continued his action against the state, claiming it was negligent in the placement of an "END 45 MILE SPEED" sign before an unmarked curve that could not be safely negotiated at speeds in excess of 40 miles per hour.

The trial court granted the state's motion for summary judgment, holding that the state's conduct in posting regulatory signs was entitled to governmental immunity under the discretionary function exception pursuant to Minn.Stat. Sec. 3.736, subd. 3(b) (1986). The court of appeals reversed, holding that, although signing was a discretionary act entitled to governmental immunity, such immunity did not apply where the state created a danger giving rise to a duty to warn. The court of appeals remanded for trial on the issue of whether the state had created a danger. The state then sought further review, which was granted by this court. We affirm the court of appeals, but on different grounds.

I.

On June 9, 1981, Blue Earth County passed a resolution to request the Commissioner of the Minnesota Department of Transportation to perform a traffic investigation for purposes of authorizing a reduced speed limit on a section of County State-Aid Highway No. 48 (hereinafter CSAH 48) beginning 500 feet south of the Buckmeister Bridge and continuing north to the Saltzman Resort. This request was made pursuant to Minn.Stat. Sec. 169.14, subd. 5 (1986), which provides:

Zoning within local areas. When local authorities believe that the existing speed limit upon any street or highway, or part thereof, within their respective jurisdictions and not a part of the trunk highway system is greater or less than is reasonable or safe under existing conditions, they may request the commissioner to authorize, upon the basis of an engineering and traffic investigation, the erection of appropriate signs designating what speed is reasonable and safe, and the commissioner may authorize the erection of appropriate signs designating a reasonable and safe speed limit thereat, which speed limit shall be effective when such signs are erected. ¹

Upon receipt of this request, the state conducted a traffic investigation to determine a reasonably safe speed for the specified section of CSAH 48. Jerry Miller, the local district traffic engineer assigned to the investigation, contacted Ralph Sleeper, who was the county engineer responsible for signing Blue Earth County roads. Sleeper apparently told Miller that the presence of pedestrian traffic in the area was the reason for the requested reduction in speed.

In conducting his investigation, Miller relied on the Minnesota Traffic Engineering Manual (hereinafter TEM) and the Manual on Uniform Traffic Control Devices (hereinafter MUTCD). As to speed limits, MUTCD provides:

In order to determine the proper numerical value for a speed zone on the basis of an engineering and traffic investigation the following factors should be considered:

1. Road surface characteristics, shoulder condition, grade, alignment and sight distance.

2. The 85-percentile speed and pace speed.

3. Roadside development and culture, and roadside friction.

4. Safe speed for curves or hazardous locations within the zone.

5. Parking practices and pedestrian activity.

6. Reported accident experience for a recent 12-month period.

Manual on Uniform Traffic Control Devices, 2B-10.

With the aid of an assistant, Miller investigated CSAH 48 and made "test runs" at speeds of 40, 45, and 50 miles per hour. After this investigation, Miller recommended a 45 m.p.h. speed zone for the area requested and, in addition, the area continuing north to the entrance of Bray County Park. Apparently, the extension was made because of pedestrian traffic during the summer coming from Bray County Park.

On October 5, 1981, the state issued its authorization for the reduced speed zone for the section of CSAH 48 "between a point approximately 3,400 feet north of the intersection with [CSAH] 17 and a point approximately 7,600 feet south of Trunk Highway 60." The county then posted the proper signs marking the beginning and end of the speed zone authorized by the state. Prior to the placement of the signs for the 45 m.p.h. speed zone, there were no existing speed limit signs on CSAH 48. However, in the absence of a sign, the speed limit on CSAH 48 was apparently 55 miles per hour pursuant to Minn.Stat. Sec. 169.14, subd. 1 (1982). Although MUTCD 2B-13 states that "[a]t the end of the section to which a speed limit applies, a Speed Limit sign showing the next speed limit shall be erected," no such sign was posted at the terminus of the 45-mile speed zone on CSAH 48. Instead, an "END 45 MILE SPEED" sign was erected. This was the proper procedure under MUTCD 2B-14.1, which states:

There are many secondary roads, county, township and municipal, which have been speed zoned in and on the fringes of urban districts * * * where the rural speed limit remains at that provided in the statutes and continuous speed zoning has not been warranted. In many instances the posting of the statutory speed limit to terminate the reduced speed zone would be inappropriate because the statutory limit would be misleading and encourage drivers to travel too fast for conditions. Sound engineering judgment would dictate that no numerical value should be posted and that the basic rule (Minn.Statutes 169.14 SPEED RESTRICTIONS, Subd. 1) should apply. In order to provide for the termination of the reduced speed zone without posting another numerical speed, the End (30) Mile Speed sign (R2-6) may be used.

Pursuant to the state's authorization, the "END 45 MILE SPEED" sign was placed at a point approximately 1,000 feet south of a curve, which allegedly cannot be safely negotiated at speeds in excess of 40 miles per hour. This curve, at the times relevant to this case, was apparently unmarked.

In the late evening of August 2, 1983, Ralph S. Nusbaum was driving north on CSAH 48. Nusbaum was driving about 55 miles per hour as he approached a sign indicating a 45 m.p.h. speed zone. Nusbaum slowed down to between 40 and 45 miles per hour for the speed zone and, upon seeing the "END 45 MILE SPEED" sign, began to accelerate his car to about 55 miles per hour. Nusbaum proceeded straight for a short distance and then failed to negotiate the sharp, unmarked curve to the left. Nusbaum's car left the road and went into a ditch. The accident resulted in severe injuries to Nusbaum.

Nusbaum filed suit against Blue Earth County and the State of Minnesota, claiming that defendants' negligence in signing CSAH 48 caused his injuries. Nusbaum entered into a Perringer settlement with the county, but has continued to seek additional relief against the state. The primary basis of Nusbaum's claim against the state is that it was negligent in the placement of an "END 45 MILE SPEED" sign prior to an unmarked curve that could be negotiated safely at a speed no greater than 40 miles per hour. The state moved the district court for summary judgment on the grounds that (1) "signing" was a discretionary function entitled to immunity under Minn.Stat. Sec. 3.736, subd. 3(b) and (2) the state owed plaintiff no duty of care.

The trial judge granted the state's motion and entered judgment dismissing the action. The trial judge ruled that Miller's decision as to where to place the "END 45 MILE SPEED" sign was a discretionary act of the type not to be reviewed by the judiciary under section 3.736, subdivision 3(b). The court stated that, although the state might lose its discretionary immunity if it had notice of a dangerous condition arising out of the sign placement, there was no issue as to notice in this case. The only evidence presented was the affidavit of Jerry Miller stating that he had no notice of complaints concerning the speed zone. Thus, the state retained its immunity and was entitled to summary judgment.

On appeal, the Minnesota Court of Appeals reversed. Nusbaum v. Blue Earth County, 411 N.W.2d 917 (Minn.App.1987). The court of appeals first held that the speed zone authorization by the state was "a discretionary act and entitled to discretionary immunity." Id. at 921. However, relying on its own recent decision in Holmquist v. State, 409 N.W.2d 243 (Minn.Ap...