Umpleby By and Through Umpleby v. State By and Through North Dakota State Game and Fish Dept.

• Decision Date: 29 March 1984
• Docket Number: No. 10545,10545
• Citation: 347 N.W.2d 156
• Parties: Wesley J. UMPLEBY, By and Through his co-conservators, Charles UMPLEBY and Geneva Umpleby, Plaintiff and Appellant, v. STATE of North Dakota, By and Through the NORTH DAKOTA STATE GAME AND FISH DEPARTMENT; and Morton County, North Dakota, a political subdivision, Defendants and Appellees. Civ.
• Court: North Dakota Supreme Court

Page 156

347 N.W.2d 156

Wesley J. UMPLEBY, By and Through his co-conservators Charles UMPLEBY and Geneva Umpleby, Plaintiff and Appellant, v. STATE of North Dakota, By and Through the NORTH DAKOTA STATE GAME AND FISH DEPARTMENT; and Morton County North Dakota, a political subdivision Defendants and Appellees.

Civ. No. 10545.

Supreme Court of North Dakota.

March 29, 1984.

Vogel Law Firm, Mandan, for plaintiff and appellant; argued by Jos. A. Vogel, Jr., Mandan.

Gunhus, Grinnell, Klinger, Swenson and Guy, Moorhead, Minn., for defendants and appellees; argued by Jeffrey Hannig, Moorhead, Minn SAND, Justice.

Plaintiff Wesley Umpleby appealed from a summary judgment granted in favor of defendant Morton County in a personal injury action.

In April 1981 Umpleby was injured in a one-vehicle accident on a curve on an access road in an area known as the Schmidt Bottoms south of Mandan between North Dakota Highway 1806 and the Oahe Reservoir. Umpleby sustained injuries which rendered him a quadriplegic. Umpleby contended that his injuries were proximately caused by Morton County's breach of duty to properly design and construct the road. Specifically, Umpleby contended that the county failed to provide the proper superelevation (bank) on the curve in the road.

The road is located on land owned by the United States Corps of Engineers and licensed to the North Dakota Department of Game and Fish. Prior to 1969 the road was an unimproved trail used by hunters and fishermen. In 1969 the corps of engineers and the game and fish department decided to improve the road. The corps and the game and fish department subsequently reached an "agreement" with the Morton County commissioners to widen and gravel about one and one-half miles of the road. Another one-half mile section was improved in 1970. The accident occurred on the curve that joins the two sections.

Each of the three entities contributed about one-third of the cost of the entire project. However, Morton County employees performed the work, using Morton County equipment. No plans or specifications were made and the corps did not provide any supervision. The configuration of the road followed the preexisting trail.

Upon written request from the game and fish department, the Morton County commissioners thereafter authorized periodic blading of the road during 1977. In 1978 the corps hired an independent contractor to regravel the road but no structural changes were made.

Umpleby's complaint originally included the State but the two parties later stipulated to a dismissal. Morton County subsequently made a motion for summary judgment. The court granted the motion and Umpleby appealed.

Summary judgment is a procedural device available for promptly and expeditiously disposing of a controversy without a trial if there is no dispute as to either the material facts or the inferences to be drawn from the undisputed facts, or whenever only a question of law is involved. Spier v. Power Concrete, Inc., 304 N.W.2d 68, 72 (N.D.1981).

In considering a motion for summary judgment the court may examine the pleadings, depositions, admissions, affidavits and interrogatories, and inferences to be drawn therefrom, to determine whether or not summary judgment is appropriate. First National Bank of Hettinger v. Clark, 332 N.W.2d 264, 267 (N.D.1983).

Summary judgment is inappropriate if either party is not entitled to judgment as a matter of law or if reasonable differences of opinion exist as to the inferences to be drawn from the undisputed facts. Ibid.

Even when factual disputes exist between the parties, summary judgment is appropriate if the law is such that the resolution of the factual dispute will not change the result. Such facts, in essence, are not considered material facts. Spier, supra, at 72.

On appeal from a summary judgment, we view the evidence in a light most favorable to the party against whom the summary judgment was granted. Clark, supra, at 267.

Generally, negligence actions are not appropriate for summary judgment. However, a negligence action presupposes the existence of a duty. Whether or not a duty exists in a negligence action is a matter of law to be resolved by the court before allowing a jury to hear evidence concerning a breach of that duty and proximate cause. DeLair v. County of LaMoure, 326 N.W.2d 55, 58 (N.D.1982); see W. Prosser, Law of Torts § 37 at 206 (4 ed. 1971). Thus, if Morton County did not owe a duty to Umpleby then summary judgment dismissing Umpleby's complaint was proper.

The power of county commissioners to act in matters affecting county roads is a power conferred by statute. See North Dakota Century Code Ch. 24-05. Specifically, NDCC § 24-05-17 provides:

"The board of county commissioners in their respective counties shall have the sole authority and responsibility to acquire land for, construct, maintain and operate the county road system as designated and selected by them."

The depositions and affidavits indicate that the road is not a part of Morton County's designated road system under NDCC § 24-05-16 and that it is not located on a congressional section line. In DeLair we held that a county or township does not have a duty to maintain an improved road on each section line. DeLair, supra, at 61. It follows that a county has no duty to construct roads on land not located on section lines or not part of the county road system.

The road does not connect any part of the county road system nor has the county attempted to condemn the area to obtain an easement over the property for public roadway purposes. See NDCC § 24-05-07. The depositions further reflect that although the road is open to the public, it was not intended as an all-purpose public road. It was originally intended as an access road to the corps facilities on Lake Oahe and it is now also used by the game and fish department. In sum, the road is not a public road in a literal sense. It is merely an access road owned by the corps of engineers and licensed to the department of game and fish. If the corps decided to close the road the county or anyone else would lack effective redress to force it open.

Other factors indicate that control over the road rested with the corps and the game and fish department. The license from the corps to the game and fish department provides that the game and fish department is required to "administer and maintain the said property ... in accordance with the master plan for the said project area" and to "provide appropriate markings at its own expense." Although the county periodically bladed the road during 1977, they did so at the request of the game and fish department. The improvements in 1978 were made pursuant to a contract between the corps and an independent contractor. Morton County was not involved in any manner.

During oral argument to this court Umpleby attempted to place significance upon the fact that the county's work on the last one-half mile of the road in 1970 was done pursuant to a memorandum agreement. Although portions of the agreement are contained in plaintiff's appendix to his brief, there are important sections, including those containing the alleged signatures of the parties, that are absent. Morton County, during oral argument, stated that Morton County did not sign the agreement.

A party resisting a motion for summary judgment has the responsibility of presenting competent admissible evidence by affidavit or other comparable means, and, if appropriate, drawing the court's attention to evidence in the record by setting out the page and line in depositions or other comparable documents containing testimony or evidence raising a material factual issue, or from which the court may draw an inference creating a material factual issue. Clark, supra, at 267.

In summary judgment proceedings the trial court has no legal obligation or judicial duty to search the record for evidence opposing the motion for summary judgment. This principle is equally applicable, if not more so, to appellate proceedings because the appellate court, except for jurisdictional matters and the taking of judicial notice, generally considers only those issues raised in the trial court. Ibid.

Umpleby relied upon the law stated in Clairmont v. State Bank of Burleigh County Trust, 295 N.W.2d 154 (N.D.1980), that a person may voluntarily perform an affirmative act and may thereby assume a legal duty that will afford a...