Zens v. Chicago, Milwaukee, St. Paul and Pacific R. Co., 14956

• Decision Date: 16 January 1986
• Docket Number: No. 14956,14956
• Citation: 386 N.W.2d 475
• Parties: James R. ZENS and Darlene K. Zens, Plaintiffs and Appellants, v. CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC RAILROAD COMPANY; and Aberdeen Township, Defendants, Third-Party Plaintiffs, and Appellees, v. MAJESTIC CONTRACTORS, LTD., formerly Majestic Wiley Contractors, Ltd., a corporation, Third-Party Defendant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 475

386 N.W.2d 475

James R. ZENS and Darlene K. Zens, Plaintiffs and Appellants, v. CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC RAILROAD COMPANY; and Aberdeen Township, Defendants, Third-Party Plaintiffs, and Appellees, v. MAJESTIC CONTRACTORS, LTD., formerly Majestic Wiley

Contractors, Ltd., a corporation, Third-Party

Defendant.

No. 14956.

Supreme Court of South Dakota.

Considered on Briefs Jan. 16, 1986.

Decided April 16, 1986.

James M. Cremer, of Bantz, Gosch, Cremer, Peterson & Oliver, Aberdeen, for plaintiffs and appellants.

Chester A. Groseclose, Jr., of Richardson, Groseclose, Kornmann, Wyly, Wise & Klinkel, Aberdeen, for Chicago, Milwaukee, St. Paul and Pacific R. Co., defendant, third-party plaintiff, and appellee.

Jeffrey T. Sveen and Philo Hall, of Siegel, Barnett & Schutz, Aberdeen, for Aberdeen Tp., defendant, third-party plaintiff, and appellee.

HENDERSON, Justice.

ACTION

This is an appeal by a husband and wife from a summary judgment granted in favor of the defendants, Chicago, Milwaukee, St. Paul and Pacific Railroad Company and Aberdeen Township, in a personal injury action. Wife's action sounds in loss of consortium. We affirm in part, reverse in part, and remand.

PARTIES

Plaintiffs-appellants herein are James and Darlene Zens. We collectively refer to them as the Zens and singularly refer to Mr. or Mrs. Zens. Defendants, third-party plaintiffs-appellees are Chicago, Milwaukee, St. Paul and Pacific Railroad Company (Railroad), and Aberdeen Township (Township). Majestic Contractors, Ltd., filed no brief.

FACTS

In the Summer of 1981, Mr. Zens was employed as a laborer by Majestic Contractors, Ltd. (Majestic). Majestic transported its Aberdeen employees to the work site. On August 26, 1981, Mr. Zens was a passenger in a bus operated by Majestic employee James Lancaster (Lancaster). The bus was heading toward the work site and was traveling east on a Township road known as the Country Club Road when it veered into the southern ditch, striking the backslope of the ditch and coming to rest partially on its side. The occupants of the bus were tossed around the inside of the bus and Mr. Zens' back was injured.

The exact cause of the accident is unclear. At the scene of the accident, Lancaster, the driver, told Chief Deputy Sheriff John Kahl that he hit a bump in the road and could not turn the steering wheel back and this caused the bus to go into the ditch. Deputy Kahl, however, observed that the road was dry and smooth, had been recently graded, and that no bump or hole existed in the road. Deputy Kahl's accident report reflected that the primary cause of the accident was: "Driver not paying attention while operating the bus."

An account of the accident expressed in Lancaster's affidavit is different from that given at the scene of the accident. In his affidavit, Lancaster states that the Country Club Road was bumpy and not level and that on the day of the accident, an oncoming well rig edged the bus toward the shoulder. He asserts the road had been recently graded and the dirt scraped into the ditch so the road surface appeared wider than it was. He relates the front tire hit this soft edge and because of the steep grade of the ditch and the absence of a shoulder, the bus could not be turned back and veered into the ditch. Another Majestic employee's account of the accident was that the bus vibrated off the road because of the rough road surface.

Prior to this accident and in 1973, the Railroad, in agreement with Township, trenched out a portion of the ditch which lies south of the Country Club Road. It appears there were flooding problems on a farmer's land and the trenching was supposed to alleviate this problem. The Railroad has tracks and land adjacent to, but not including, the ditch.

In 1978, Township trenched the drainage ditch out further. The ditch bottom was deepened by some two feet and some of the excess dirt was placed on Railroad property.

In their complaint, the Zens maintained that the Railroad's and Township's construction and maintenance of the ditch caused the normal descent into the ditch to be accelerated and then brought to a sudden stop by impact with the ditch's steep backslope. Zens further allege negligent construction and maintenance, nuisance, strict liability, and that the Country Club Road was out of repair by reason of the location and construction of the drainage ditch.

Contained in the settled record is the affidavit of Professional Engineer Albert Klais. Klais' affidavit states that the Country Club Road does not conform with the American Association of State Highway and Transportation Officials (AASHTO) standards for the design and construction of roadways because the shoulder is too small and the ditch's inslope and backslope are too steep. It is his opinion that by widening and deepening the ditch, the roadway came out of repair. This is pivotal to our holding. We note that there is no showing in the settled record to refute Klais' opinion.

The Railroad and Township moved for summary judgment, whereupon the trial court granted the same. From this judgment, the Zens now appeal. We treat two issues.

DECISION

I.

IS TOWNSHIP PROTECTED FROM THE PRESENT ACTION BY THE DOCTRINE OF SOVEREIGN IMMUNITY? UNDER THESE FACTS AND CIRCUMSTANCES, WE HOLD IT IS NOT AND THAT GENUINE QUESTIONS EXIST FOR THE TRIER OF FACT.

The Zens initially contend that Township has waived its sovereign immunity by the purchase of liability insurance. This contention, however, goes against the well-settled law of this state and is wholly without merit. The purchasing of "insurance does not create a cause of action where none existed in the absence of insurance." Dohrman v. Lawrence County, 82 S.D. 207, 212, 143 N.W.2d 865, 868 (1966). See also, Holland v. Yankton Sch. Dist. 63-3, 375 N.W.2d 199, 199-200 (S.D.1985); Merrill v. Birhanzel, 310 N.W.2d 522, 523 (S.D.1981); and High-Grade Oil Co., Inc. v. Sommer, 295 N.W.2d 736, 739 (S.D.1980). Nor do we read a waiver, as applicable to Township, arising from SDCL 21-32-16. This statute specifically applies to the state's waiver of sovereign immunity to the extent liability insurance is purchased pursuant to SDCL 21-32-15 for the state, its officers, agents, or employees. In Holland, we refused to extend the waiver under SDCL 21-32-16 to school districts, and here, we refuse to extend the SDCL 21-32-16 waiver to townships.

Zens' second and main contention is that the Country Club Road was out of repair within the meaning of SDCL 31-32-10, and that an action may therefore be maintained against Township under the purview of SDCL 31-32-11. We must examine these two statutes.

SDCL 31-32-10 provides:

In case any highway, culvert, or bridge shall become in whole or in part destroyed or out of repair by reason of floods, fires, or other cause to such extent as to endanger the safety of public travel, it shall be the duty of the governing body or board under statutory duty to maintain such highway, culvert, or bridge upon receiving notice thereof to cause to be erected for the protection of travel and public safety, within forty-eight hours thereafter, substantial guards over such defect or across such highway of sufficient height, width, and strength to guard the public from accident or injury and to repair the same within a reasonable time thereafter. It shall also be the duty of such governing body or board to guard any abandoned public highway, culvert, or bridge in like manner. Any officer who violates any of the provisions of this section commits a petty offense.

SDCL 31-32-11 further provides in part:

Any person who shall sustain injury to person or property by reason of any violation of Sec. 31-32-10 shall have a cause of action against the county, township, city, or town as the case may be for such damages as he may have sustained.

Since it is only for the violation of SDCL 31-32-10 that SDCL 31-32-11 purports to create a remedy in the form of a civil action, Hanigan v. Minnehaha County, 47 S.D. 606, 608, 201 N.W. 522, 522 (1924), Township's liability, if any, is thus determined by applying the standard of conduct imposed by SDCL 31-32-10, rather than the standard of conduct of a reasonably prudent person, Lipp v. Corson County, 76 S.D. 343, 346, 78 N.W.2d 172, 174 (1956), because there is no common law right of action against a county or township for recovery of damages resulting from a defective highway. Dohrman, 82 S.D. at 209, 143 N.W.2d at 867. See also, Pederson v. Canton Township, 72 S.D. 332, 335, 34 N.W.2d 172, 174 (1948); and Williams v. Wessington Township, 70 S.D. 75, 79, 14 N.W.2d 493, 495 (1944).

In determining whether the standard of conduct imposed by SDCL 31-32-10 has been violated, we have concluded that no liability arises from inherent defects in the design or plan of the highway provided the public. See Dohrman, 82 S.D. at 210, 143 N.W.2d at 867; and Reaney v. Union County, 69 S.D. 392, 397, 10 N.W.2d 762, 764 (1943), opinion adhered to on rehearing, 69 S.D. 488, 12 N.W.2d 14 (1943). This is because statutory liability arises only in case a highway becomes out of repair and does not arise when a highway is defectively birthed. Thus, no liability is imposed for failure to install adequate signs warning of highway dangers, Dohrman, Reaney, and no liability is imposed for failure to install adequate guardrails because these are inherent defects in the highway. Reaney. However, once a highway warning sign is installed, and that warning sign is absent from its designated location, it is a question for the trier of fact whether the absence of that sign caused the road to become out of repair. Kiel v. De Smet Township, 90 S.D. 492, 497, 242 N.W.2d 153, 156 (1976). This Court has also determined that the duties imposed upon a county or township by SDCL 31-32-10 do not only apply to the driving portion of a highway, but also apply to an appurtenant part of the highway. Kiel, 90 S.D. at 495-97, 242 N.W.2d at...