Terry v. Edgin
| Decision Date | 22 February 1977 |
| Docket Number | No. 48452,48452 |
| Parties | Jimmy Neal TERRY, Appellant, v. Gore EDGIN dba Gore Edgin Construction Company, and Cleveland County, Oklahoma, acting by and through its Board of County Commissioners, Defendants, and The City of Norman, Oklahoma, a Municipal Corporation, Appellee. |
| Court | Oklahoma Supreme Court |
Wayne Wells, Lampkin, Wolfe, Burger, Abel, McCaffrey & Norman, Oklahoma City, for appellant.
Fielding D. Haas, Norman, for appellee.
The primary issue presented here is whether the City of Norman is subject to liability for the existence of a hazard upon a street when that street is located within the municipal boundaries of Norman, but is also a county section line road.
Around 1:00 a.m. on February 10, 1974, Jimmy Terry was driving south on Henny Road when he collided with a pile of gravel in the roadway. He brought this action for personal injuries against the City of Norman, Cleveland County and the Gore Edgin Construction Company. The trial court granted City's Motion for Summary Judgment and Terry appeals that ruling. Cleveland County and Gore Edgin Construction Company are not parties to this appeal.
The Court of Appeals reversed and remanded to trial court for further proceedings by unpublished opinion. Appellee, City of Norman, seeks Certiorari. Certiorari granted. Opinion of Court of Appeals vacated. Cause reversed and remanded.
The relevant portions of plaintiff's petition as amended, alleged that the location of the gravel on the roadway was within the City limits of Norman; that the gravel pile had been placed on the roadway during the afternoon of the previous day by the Gore Edgin Construction Company; that the City of Norman allowed the gravel to be placed in the roadway and allowed the gravel to remain there when it knew, or should have known, that automobiles would be likely to collide with it; that at all times the defendants Cleveland County and Gore Edgin Construction Company were the agents, servants and employees of the City of Norman and were acting within the scope of their employment; that the defendants failed to post any warning of the presence of the gravel and that as a result of the negligence of the defendants, plaintiff suffered permanent, painful and progressive injuries.
The City of Norman denied all plaintiff's material allegations; City conceded that the location of the gravel on Henny Road was within its municipal limits, but denied any responsibility or liability for the gravel's presence, alleging that the County Commissioners contracted with Gore Edgin Company to dump the gravel on Henny Road, a section line road and that the gravel was to be spread later by county personnel; that the County Commissioners were acting pursuant to authority of law in making this contract and that they were acting in their governmental capacity; City asserted that it had no knowledge of the Cleveland County-Gore Edgin contract and that it had no notice or knowledge of the gravel. The City further alleged that warning stakes were posted around the gravel and that they were readily visible to drivers.
The City attached to its answer an affidavit of the Norman Supervisor of Street Maintenance which stated that all contracts for work and materials furnished the City for use upon its public ways were under his jurisdiction; that he knew that no responsible City Officer knew about the contractual arrangement between Cleveland County and Gore Edgin; that the City had no knowledge of, or responsibility for, the gravel on the section line road; that the entire transaction was conducted exclusively by Cleveland County and its agents and employees and that no City personnel were involved in any manner.
City then filed its motion for summary judgment which was sustained by the court. The trial judge rendered a written 'memorandum' setting forth the findings and conclusions of the court and the relevant portions are as follows:
'Depositions indicate 1 and the briefs of the parties infer it is undisputed between the plaintiff and the defendant-City that there was an unwritten agreement between the City and County whereby the County maintained all section line roads inside the City limits but outside the City-proper, while the City maintained section line roads and streets within the developed portion of the City. The City was aware at all times pertinent to this case that the County was maintaining section line roads inside the City limits, although there is no evidentiary showing that the City had any knowledge of the specific Henny Road gravel work being done on February 9, 1974. Plaintiff contends such notice is imputed to the City.
'The City contends notice cannot be imputed to it of the County's gravel work and leaving it piled in the roadway for two reasons: First, the City had no actual notice of the condition, and the condition had not existed long enough to impute notice since it was not otherwise negligent, and second, the City had no supervisory or contractual connection with the Construction Company or the County.'
The trial judge went on to find that the City had no actual notice of the gravel in the roadway.
Although the judge cited several cases 2 wherein it had been decided that whether the circumstances were such that the municipality should have discovered the defect through ordinary care was a question of fact, and in spite of his observation that there were no Oklahoma cases indicating what might or might not be a reasonable time to discover a street defect, the judge went on to state that:
'In this case, the undisputed facts show the City had a maximum of nine hours to learn of the hazard created by a pile of gravel on a section line road in the country, but within the geographic limits of the City. Plaintiff has attached no evidentiary material that would show the City had actual notice of this specific hazard, or submitted any authority for the proposition that existence of the hazard for as long as nine hours should have been discovered by the exercise of due diligence. Absent any authority to the contrary, and in view of the lengthy periods of time involved in the cases previously mentioned, this Judge rules as a matter of law the mere existence of a hazard for a period of nine hours on a rural road is insufficient by itself to show the City knew or should have known of it.
'Plaintiff argues that the City, being responsible for the streets and roads on it, should have supervised and controlled the gravelling of Henny Road, and such does not sound the least unreasonable until the problem of overlapping municipalities is considered. The statutes of the State of Oklahoma (69 O.S.1971, Sections 601, 603, 628) assign the duty of opening and maintaining county section line roads and bridges to the County Commissioners of the County. It would appear that if the City attempted to interfere with the Commission's performance of that duty, it could be immediately enjoined. No authority has been offered by plaintiff to show any right in the City to exercise supervision or control over the County's road building practices, and small wonder, for there appears to be a dearth of such authority.
The trial court concluded that there was no substantial controversy as to any material fact and sustained City's motion.
Appellant Terry urges two major propositions of error. First, he argues that the City of Norman had a nondelegable duty to maintain Henny Road in reasonably safe condition and that the City could not relieve itself of liability for failure to perform that duty by delegating that responsibility to the County Commissioners. Appellant next argues that the question of whether or not the City of Norman had actual or constructive notice of the gravel is a question of fact which must be decided by the trier of fact after presentation of evidence.
To sustain his position that the City of Norman was solely responsible for maintaining Henny Road, appellant relies upon numerous decisions from this Court holding that a municipal corporation has a nondelegable duty to maintain its streets and roads in reasonably safe condition for the traveling public. E.g., City of Wagoner v. Black, 186 Okl. 207, 97 P.2d 21 (1959); City of Hugo v. Nance, 39 Okl. 640, 135 P. 346 (1913); City of Tulsa v. Macura, 186 Okl. 674, 100 P.2d 269 (1940).
The City of Norman concedes that this general statement of the law is correct but denies that it is applicable to the facts of this case. City maintains that the County Commissioners have exclusive jurisdiction over Henny Road, notwithstanding the fact that it is situated within the corporate boundaries of the city, because it is a county section line road. City argues that for this reason it had no obligation to receive notice of the county's construction work on the road, no right or power to consent to the work and no authority to control or supervise the work. City relies upon the provisions of 69 O.S.1971, §§ 601, 603 and 628 to support this position.
Title 69 O.S.1971, § 601 provides that:
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