Foster-Naser v. Aurora County
2016 SD 6
| S.D. | 2016Background
- On Sept. 30, 2010, Travis Naser died in a one-vehicle crash on 268th Street (a township road in Aurora Township); plaintiff Lynn Foster‑Naser sued Aurora County for wrongful death alleging negligent failure to maintain a double‑arrow warning sign at a dead‑end intersection.
- 268th Street is a township road; Aurora Township has statutory responsibility to maintain roadway markings and signage.
- Aurora County had a long‑standing oral agreement with the township to perform road work (blading and snow removal); the County conceded the oral agreement but denied any agreement to install, repair, or maintain signage.
- Plaintiff pointed to the County’s Sales History Report (showing sale of signs to the township and various billed road services) and deposition testimony of Highway Superintendent Konechne (who testified County bladed/plowed the road and occasionally noticed damaged signs) to argue a factual dispute existed about the agreement’s scope.
- The circuit court granted the County summary judgment, holding as a matter of law no duty existed because plaintiff failed to show the County assumed full control of the township’s statutory duty to maintain signage.
- The Supreme Court affirmed, concluding no probative evidence showed the County agreed to maintain or repair the township’s signs and duty remains a legal question for the court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Aurora County assumed the township's statutory duty to maintain the double‑arrow sign by oral agreement | Foster‑Naser: oral agreement + Sales History Report + Konechne testimony create a factual dispute that County assumed sign‑maintenance duty | Aurora County: agreement was limited to blading and snow removal; no agreement to install/repair signage | Held: No genuine issue; as a matter of law County did not assume full control of township's signage duty; summary judgment affirmed |
| Whether oral, long‑standing practice requires jury determination of duty | Foster‑Naser: absence of written agreement makes scope a fact question for jury | Aurora County: duty is a legal question; oral agreement alone insufficient to create county liability for signage | Held: Duty is question of law; summary judgment proper when no duty exists |
| Whether sale of signs to township implies contractual maintenance obligation | Foster‑Naser: Sales History Report shows County provided signs and services suggesting broader responsibility | Aurora County: sale of signs is not evidence County agreed to maintain them | Held: Sales records not probative of assuming statutory duty to maintain signage |
| Whether routine inspection/travel by County employees demonstrates assumption of signage duties | Foster‑Naser: Konechne’s testimony that he drove 268th to ‘‘maintain properly’’ suggests assumption of full maintenance duties | Aurora County: testimony shows blading/snow removal only; County notified township of damaged signs but did not repair them | Held: Testimony shows limited duties; does not establish assumption of township's signage duty |
Key Cases Cited
- Robinson v. Minnehaha Cty., 277 N.W. 324 (S.D. 1938) (contractual assumption of municipal duties requires showing of full control under the contract)
- Millea v. Erickson, 849 N.W.2d 272 (S.D. 2014) (summary judgment proper when no duty exists in negligence case)
- Hamilton v. Sommers, 855 N.W.2d 855 (S.D. 2014) (existence and scope of duty is a question of law)
- Fisher v. Kahler, 641 N.W.2d 122 (S.D. 2002) (appellate standard for reviewing summary judgment)
- Bordeaux v. Shannon Cty. Schs., 707 N.W.2d 123 (S.D. 2005) (party resisting summary judgment must show sufficient evidence to support each element at trial)
- Chem‑Age Indus., Inc. v. Glover, 652 N.W.2d 756 (S.D. 2002) (same—burden on nonmoving party to show triable issues)
- Estate of Elliot v. A & B Welding Supply Co., Inc., 594 N.W.2d 707 (S.D. 1999) (mere possibility is insufficient to withstand summary judgment)
- Stern Oil Co., Inc. v. Brown, 817 N.W.2d 395 (S.D. 2012) (nonmoving party must present probative evidence to defeat summary judgment)
- Kiel v. DeSmet Township, 242 N.W.2d 153 (S.D. 1976) (statutory duty to repair a road can include duty to maintain warning signs)