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Road Injury Prevention & Litigation Journal
Copyright © 1997 by TranSafety, Inc.
March 1, 1997
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County Assumes No Duty by Assigning Police to State Intersections During Power Outage
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Summary Judgment Granted: Montana Decision on Moose-Crossing Signs Subject to Immunity

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Given Six Weeks' Notice, Is County Negligent for Failure to Remove Ice? It's a Question for the Jury.

Arpie Bland lost control of her car on an icy patch of Davison County Road #23. The car went off the South Dakota road and rolled; her resulting injuries left her paraplegic. Bland and her husband sued the County for negligence in failing to correct a recurring hazardous situation when the County had notice of the hazard. The Circuit Court entered judgment in favor of the County. When the Blands appealed, the Supreme Court of South Dakota reversed the trial court's judgment and remanded the case to jury consideration.

The section of county road on which this crash occurred was between two shelterbelts of trees. Bland contended the shelterbelts caused snowfall to pack into ice every year. On January 6, 1990, when the crash happened, ice on this part of the road had existed for six weeks. Bland asserted that both she and the County knew of the dangerous icy condition. The plaintiffs argued the County's lack of action to salt and sand in this area of known danger constituted breach of duty, and that breach of duty was the proximate cause of Bland's crash and injuries. The County pointed out they had followed a policy of sanding hills, curves, bridges, and intersections with stop signs. They did not, however, routinely sand other areas, and they maintained they had no duty to do so--and no liability for not doing so.

In framing the issue of the appeal, the Supreme Court offered, "Essentially, Bland asks this Court to determine if County's duty to properly and adequately maintain its roads includes the removal of ice and snow as pertains to this case." The Court maintained summary judgment would be appropriate only if there were not a material issue of fact about the County's legal obligation to act for the benefit of the plaintiff.

SDCL 31-12-19 broadly defines duty for the County: "It shall be the duty of the board of county commissioners to maintain properly and adequately the county highway system. . . . " Statute also requires the County to "maintain properly and adequately the county highway system" (Kiel v. DeSmet Township, 90 S.D. 492, 242 N.W.2d 153 (1976)). The Court concluded that they could not "infer from the statutes that County has permission to idly stand by while hazards knowingly exist on its roads." Therefore, although the County could not be held responsible for South Dakota's climate, it must be held responsible for meeting the common law definition of negligence; that is, the County must perform its duties with "that care which an ordinarily prudent or reasonable person would exercise under the same or similar circumstances . . ." (Lovell v. Oahe Elec. Co- op, 382 N.W.2d 396 (S.D.1986)).

Citing Farrell v. State (46 A.D.2d 697, 359 N.Y.S.2d 922 (1974)) and others, the Court noted that if the County had ample time to correct a dangerous situation, it may be found in violation of its maintenance duties. The Court found that whether the County was negligent in allowing a dangerous situation to continue when it had notice of the hazard was an issue of material fact for a jury to decide. Therefore, they reversed the lower court's judgment for the County and remanded the case for trial.

Two justices, Wuest and Sabers, filed a separate concurring statement. They first noted that the County waived its claim to sovereign immunity when it purchased liability insurance; therefore, sovereign immunity was not applicable here. The justices affirmed that the County's duty to maintain the roadway was clear. They pointed out that courts in New Jersey, Iowa, Alaska, and New York had all found that the failure of a governmental entity to remove ice and snow from the roadway in a timely manner caused a question of liability. Wuest and Sabers agreed that the facts of this case called for a jury trial.

Justice Amundson wrote a dissenting opinion. Amundson argued that extending potential liability for unremoved snow and ice to all areas of the highway system was beyond the generic duty imposed by statute. He referred to Homan v. Chicago & Northwestern Transp. Co. (314 N.W.2d 861, 862 (S.D.1982)) which concluded:

The presence of snow on a township road late in December is not an altogether unexpected event. Although, the presence of snow on a highway may indeed present a hazard to motorist, to hold that unremoved [ice] causes a [county] highway to become out of repair would constitute a remarkable extension of the duty imposed by SDCL 31-32-10[.]

In view of South Dakota's harsh climate, Justice Amundson declined to impose duty on the County for removal of all snow and ice from its highways and stated he would affirm the Circuit Court's decision.

[Bland v. Davison County, No. 18002 (S.D.1993) from West Publishing Vol. 507 North Western Reporter, 2d Series, 80]

Copyright © 1997 by TranSafety, Inc.

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