*1
Larry Appellant, and Plaintiff
v. TOWNSHIP, political
NEW HOPE County Brown,
subdivision Dakota,
State of South Defendant and
Appellee, Acres, Inc., corporation,
T-Lakota Appellee,
Defendant and
v. Rozell, Third-Party
Scott Defendant Appellee. Braun,
Larry Appellee, Plaintiff and
v. Hope Township, political
New subdivi County Brown,
sion of the State of Dakota, Appel Defendant and
lant, Acres, Inc., corporation, Appellee,
Defendant and Rozell, Third-Party
Scott Defendant Appellee.
Nos.
Supreme Court of South Dakota.
Considered Briefs April
Decided June *2 Tonner,
Thomas Tobin and P. Tonner Aberdeen, King, plaintiff Braun. Gosch, Bantz, L. Greg Peterson of Cremer, Aberdeen, Sommers, Peterson & Hope Township. for defendant New Richardson, Chester A. Groseclose of Wise < n Groseclose, Sauck, Wyly, Aber- deen, for defendant T-Lakota Acres. Rice, Ewinger Richard L. Russman Russman, Aberdeen, for Rozell. defendant ZINTER, Justice. (Braun) Larry Plaintiff Braun New Hope defendant
(Township) court’s appeal the trial summary order in fa- granting judgment Acres, vor Inc. of defendants T-Lakota (T-Lakota) (Rozell). T- and Scott Rozell allegedly negli- Lakota and Rozell were removing prop- gent failing either erly township-road sign reinstall rein- warned a washout. warning sign stalled the after T-Lakota’s alleged negligence. After en- Rozell’s summary judgment, Township re- try of affirm. mained the sole defendant. We Township, AND Braun driving FACTS PROCEDURE his Suburban the road in order to examine his sum produced [¶ 2.] The winter of 1996-97 past his-field, flower field. As he drove heavy Township. snowfall The fol- Braun descended a hill down toward the lowing spring, Township roads *3 seven were creek that had out. Braun washed claims by from melting washed out runoff the sign that he did not right see the on the protect public, To Township snow. the of the road. side He also claims that he a sign installed “ROAD CLOSED” about did not see the in washout time to avoid it. three-quarters of a mile one of the Braun stop was unable to before driving mounted sign washouts. was on a into the severely wash-out. He was in- in the center post of the road. jured as a result of the accident. 1997, 23, May On Ron [¶ 3.] Backman Braun Township [¶ 7.] sued and T-La- (Backman), T-Lakota, employee injuries kota for the he sustained. Both drove T-Lakota’s tractor Rozell’s farm defendants denied responsibility as- deliver a farm implement. 24-foot-wide deposi- serted affirmative defenses. After Backman also to help intended Rozell taken, tions were T-Lakota moved for plant soybeans on Rozell farm. the summary judgment. The motion was ini- farm, Backman proceeded toward the he tially denied. depositions After further the sign observed “ROAD CLOSED” taken, joined Rozell as a were was third- In get the middle of the road. order to party defendant. T-Lakota subsequently farm implement, Rozell’s with the Back- renewed its summary judg- motion for sign man had to remove the from the joined ment. Rozell in the motion. The middle of the road. Backman pulled When trial court ultimately granted the motion. road, sign portion out of the a of the The trial court that Township’s concluded broke, post and he on placed sign alleged a negligence was superseding side road. cause that relieved Rozell and T-Lakota [¶ 4.] When the was planting complet- (Backman) for their alleged farm, ed Rozell’s Backman and Rozell negligence. Braun appeals. try put sign up. met to back They They not only
were successful. were able STANDARD OF REVIEW prop sign a up against pile of rocks reviewing grant or a a denial middle of the Before leaving, road. of summary judgment under SDCL 15- Rozell told Backman that Rozell would 6-56(c), we must determine whether the sign later and put up return with a moving party demonstrated absence post maul. any genuine material fact issue of Rozell, however, judgment forgot [¶ 5.] [established] to fix entitlement on the merits as a matter of law. sign. days When he did return a few later, evidence most favorably must be viewed sign Rozell found that was al- nonmoving and reason- ready party[,] reinstalled someone else. It was against able resolved doubts should be later discovered that learned the Our moving party.... ap- task on down, was sign and two members of the peal only gen- is to determine whether a They Board it. reinstalled did uine issue of material fact exists and not, however, sign in reinstall the the mid- correctly applied. whether the law was Instead, they dle of the road. reinstalled right it side of the road. Because Dakota Plant State Cement Com’n broken, post fence sign Co., Ins. v. Wausau Underwriters 2000 SD ¶ 116, 397, it 9, also somewhat shorter than was before 400-01. 616 N.W.2d Backman removed it. disposi- case the this
[¶ 6.] On about a questions par June three tive issue whether after the sign ty’s weeks was reinstalled (internal omitted). However, cause citations
negligence was a
must
a su-
“[t]he
later,
explained
this is
accident. As
entirely
It
so
su-
perseding cause.
must
f 11.
duty.1
legal
See
'question
infra
persede
operation
defendant’s
duty,
sufficient
impose
“For
law to
alone,
negli-
negligence that
without his
par-
exist between the
relationship must
thereto,
gence contributing
produces the
Bank, 436
v. United Nat.
ties.” Gilbert
added).
injury.” Id.
(internal
(S.D.1989)
citations
N.W.2d
acknowledged
Although we have
omitted). Foreseeability
may also create
cases,2
rule in a number
we have
Lagow
Develop-
duty.
Const.
Smith
it is an
specifically considered whether
¶37, 17,
Co.,
SD
642 N.W.2d
*4
duty
of
or causation. We also have
issue
foreseeability
question of
is a
“Although
under
circumstances
not considered
contexts, foreseeability in de-
fact in some
applied.
should be
which
rule
of a
is
fining
always
boundaries
intervening/superseding
¶ 18,
law.” Id. at
642
of
N.W.2d
question
of
analysis questions the extent
cause
omitted).
(additional
“Fore-
187
citations
duty,
actor
obligation,
original
or
of the
‘duty’
in
sense is different
seeability
Page
al.,
et
negligent.
who was
Keeton
W.
bearing
in
foreseeability
fact issues
from
Prosser and Keeton on
Law of Torts
(breach
duty)
of
and causa-
on negligence
ed.1984).
(5th
§
Although
44 at 301
questions
this case
tion.” Id. Because
is
in
of
question
expressed
often
terms
(created
cause,”
relationship
“proximate
“cause” or
those terms
of a
existence
The appropriate
avoid
real
issue.
foreseeability), the
is a
through
issue
of
question
negligence
one
and the
“is
fully
is
question of law that
reviewable
[orig-
obligation:
extent of
whether the
Gilbert,
27;
436 N.W.2d at
this Court.
responsibility
to such
actor’s]
inal
extends
¶ 18,
at
642 N.W.2d at
Lagow,
741
operates
foreseeable,
actively
producing
ing negligence
one
origi-
which
“[fjoresee-
harm to another after the actor’s
nal actor remains liable because
act or
has been committed.” Re-
omission
able intervening forces are within the
(Second)
441(1).
§.
of.
statement
Torts
scope of the original
§
risk ....” Id.
44 at
(1984).
operation
the act
of an
If
inter-
303. As we
in Lagow,
noted
“[f]oreseeabil-
.
prevents the
vening
original
force
actor’s
ity
high
risk
harm is the
basis
becoming
antecedent
a le- delineating the
for a duty
boundaries
gal
about
harm
bringing
cause
¶
protection.” Lagow,
tions become a cause are set adequate signs protect barriers and to the § forth in 452 of the Restatement. Gener public from damaged township roads. ally, failure person “the of a third to act to SDCL provides 31-32-10 that a township prevent harm to another threatened by the is the responsible for maintenance of its negligent actor’s a supersed conduct is not highways if are they damaged by a flood. of such harm.” Restatement at 452(1). specifically requires The statute is, however, townships § There exception an guards to “erect over such defect or across that is the issue in this case. “Where otherwise, width, such lapse highway height, of sufficient because time or the duty prevent strength guard public to harm to to another threat the from by ened the actor’s conduct accident or injury....” Additionally, Id. found to have requires shifted the actor to a townships SDCL 31-28-6 to erect person, third the failure of per the third conspicuous warning “substantial prevent son to such harm is a superseding sign[s]” on the right-hand high side 452(2) added). § cause.” Id. at way “point[s] of danger.” for These stat duty, such cases the and therefore the utes create a Lagow, care. See responsibility, entire shifts to third ¶ 38, 37 at 642 SD N.W.2d at - person and the original actor is relieved of (Gilbertson, (a C.J., dissenting) legal obli 452(2) liability. § Id. at com. d. gation can be created enactment of statute). In order
[¶ 16.]
to determine
It
significant
[¶ 18.]
is also
that
whether an
this
actor’s
is shifted to a
person,
happened
third
must
accident
after
affirma-
one
look
see if
tively acted
these statutes
cause was foreseeable.
under
to reme-
Pros
Keeton,
dy
ser
supra,
danger.
Because
at 302.
rein-
The
accident,
risk created
T-
original
may
sign
actor
stalled
before the
include
intervention of the
Lakota’s and
foreseeable
Rozell’s acts
omissions
others.
Id. If
longer creating
such interven- were no
the condition
Court
Supreme
Braun.
The Oklahoma
ultimately
harmed
which
danger
action, in maintaining
held that the State’s
statutes,
the affirmative
light
these
after
dangerous
in a
condition
it
road
time,
passage
and the
Township,
acts of
work,
accepted
company’s
constituted
Town-
reasonably foreseeable that
itwas
cause. Id. at
intervening [superseding]
an
sign
a manner
reinstall
ship would
phrased
question,
court
1066. The
inadequate
guard
allegedly
that
company]
[construction
“Mould
not.
We think
highway?
reasonably anticipated that
State
expressly recog-
Prosser
Highway Department
permit
would
superseding responsibility of
nized
dangerous
public
use this
in its
road
Township,
like
who become
parties
form
erecting
condition without
some
deal with
it before
danger
aware of
Id.
warning signals or barriers?”
caused
negligence has
original
actor’s
it
court
that
not foreseeable
answered
that
those situa-
harm. Prosser notes
that
would
its
to the
neglect
the State
“free
tions,
original actor is sometimes
travel on
allowing
public
extent of
a third
be-
party
to assume
when
beyond
dangerous
the road in its
condition
in a
danger, and is
aware of the
comes
remedy
time it would take to
whatever
it,
person
the third
to deal with
such
Id. at 1067.
court
position
condition.
concluded,
do
think reasonable
only
“[w]e
It is
mis-
reasonably.
act
where
will
question.
differ
We
[minds] would
taking
anticipated,
conduct was
...
hold that
it could not have been rea-
unreasonable,
that liabili-
of was
the risk
anticipated
High-
sonably
State
consequences
imposed
ty will be
way
public
would
trav-
Department
permit
acts
*6
contributed.”
which such
for
of
period
el over this road
a
seven
Keeton,
§ 44 at
If
supra,
Prosser
taking precautions
without ever
to
months
“fully
danger,
discovers the
person
a third
guard
accidents ....” Id.
against
disregard
in deliberate
proceeds,
and then
v. Village
Stephen,
In
[¶
Goar
plaintiff
22.]
upon
the
the
...
inflict
of
of
(1923),
196
171
157 Minn.
N.W.
the
person
discov-
which the third
danger
Distributing Company
Electric
Minnesota
to the
responsibility
the
is shifted
ered”
(Vil-
Village
Stephen
contracted with
44
318-19. Under
party.
Id
an
lage) to construct
electric transformer
circumstances, T-Lakota and Rozell
these
project
completed,
pole.
was
When
that Township,
foreseen
could not have
Village.
turned it
to the
company
over
sign,
have
having reinstalled
would
parties,
between those
like
contract
in a manner which
did
allegedly
done so
case, expressly imposed
in this
statutes
duty.
Township’s
not meet
responsibility
enti-
upon
governmental
were consid-
Similar situations
[¶20.]
ty
care,
inspection,
and maintenance.
In
and Minnesota.
ered in Oklahoma
however,
Village,
nothing
inspect
did
Buckner, Inc.,
and
329
Lyles
Greenwood
pole.
maintain the
Over seventeen months
(Okla.1958), a construction com-
P.2d 1063
later,
through
it was discovered that
open
an
ditch
pany
drainage
constructed
of the
two wires on
negligence
company,
highway
a
for the State
Oklahoma.
on
too
pole
together.
were set
close
a
work,
company
performing
result,
winds
the wires to rub
high
caused
warning signs
barri-
any
failed to erect
to wear.
together,
began
and the insulation
however,
State,
accepted
ers. The
When the insulation on the wires had final-
later, a
company’s work. Seven months
an
current
ly
through,
worn
electrical
when she drove into
plaintiff
injured
telephone
was
transmitted over a
volts
phone.
using
wire
who was
plaintiff
the ditch.
Minnesota
his
into the
If
Supreme
Court
Suburban
washout.
Rozell
[¶ 23.]
company
case,
held that
was not liable for
or T-Lakota were liable in
such
Id. at
The court
negligence.
its
stat-
nothing
prevent
being
would
them from
ed,
case,
[c]ompany is
this
“[i]f the
liable
if
liable
the accident were to occur ten
prevent
there is
of law which would
no rule
years
lapse
later. We hold that
the same result were the accident
occur
time,
statutory
the independent
duty of
elaborated,
years
ten
Id. The court
later.”
Township
guards
to erect
and maintain an
Village
“...
negligence
was an
and
appropriate sign,
per-
the affirmative
independent
of such
producing agency
duty
formance of
allegedly negli-
an
character, that it broke the causal connec- gent manner were
causes that
negligence
tion
the compa-
between the
relieved
and
of liability
Rozell
ny
plaintiffs injury....”
and
Id. at 237.
alleged negligence.
for their
Under these
The court held
where there has been
circumstances,
liability for the breach of
time,
an
lapse
extended
and failure to duty to Braun shifted to
Township.
affirmative
perform
part
an
of Summary judgment
properly granted.
Village,
for which
but
the accident
[¶
Affirmed.
25.]
occurred,
Village’s
would not
fail-
perform
proximate
ure to
becomes the
GILBERTSON,
Justice,
[¶ 26.]
Chief
cause.3
Id. at
AMUNDSON,
KONENKAMP,
and
Justices, concur.
case,
injury
no
oc
curred
the time
between
of T-Lakota’s
SABERS, Justice,
dissents.
alleged negligence
Rozell’s
SABERS, Justice (dissenting).
Township
sign.
time
reinstalled the
When
I
The majority opinion
dissent.
Rozell
returned
fix the
he found
holds that
in im-
the conduct
that Township
already
had
undertaken its
properly reinstalling
warning sign
statutory
and had
it.
duties
reinstalled
At
intervening superseding
preclud-
this point, neither Rozell nor T-Lakota
ing a finding
relieving
any
had
reason
foresee that
any liability.
Rozell and T-Lakota from
had
their
performed
allegedly
in an
*7
result,
reaching
majority
opin-
Approximately
manner.
three
(Sec-
incorrectly
weeks after
its
ion
relies on
completed
statu
Restatement
ond)
452(2).
tory duty
§
to reinstall the
Braun drove
of Torts
Although
Supreme
warning
the Minnesota
Court
set out barriers and
flares for the
causation,
phrased
protection
highway.
the issue in terms of
of travelers on the
A
forgets
going
so
"duty”
to do
before
home at the
and "causation” are often used inter-
event,
day.
halfway
end of
home he
any
When
changeably.
result
is the
remembers,
scene,
and returns to the
in-
phrased
same
whether the issue is
terms of
tending
good
neglect.
to make
his
There
“duty” or "causation.”
B,
company,
he
meets
foreman of the
argues
T-Lakota
that Rozell's assurance to
home,
go
promising
who tells him to
sign
Backman that Rozell would
reinstall
he, B,
look
will
after the barriers and
superseding
Responsibility
was also a
cause.
goes
forgets,
flares. A
home. B in turn
may
by
agreement
shifted
between the
guard,
and the trench is left without
original
person.
actor and a third
Restate-
C,
lights, warning. During
night
a
452(2)
§
ment at
cmt. e. The Restatement’s
highway,
traveler on
drives into the
apposite:
illustration is
injured.
trench and is
A is not liable to
employed
a
A is one
crew of
workmen
C.
that,
by
company
452(2)
a
§
construction
to excavate a
agree
Id.
illus.
We
as
Rozell,
public highway.
responsi-
trench
One
in the
of A's
between
and
duties,
work,
day's
bility
at the close of a
is to
shifted to Rozell.
452(2)
concurrently
Township operated
pro-
to
to
exception
is an
Section
452(1)
by
Braun.
§
duce
harm suffered
that “the fail-
rule of
general
prevent
to act to
person
ure of a third
Furthermore,
this Court
the actor’s
threatened
harm to another
“[N]egligence,
person
to render
stated:
superseding
not a
negligent conduct is
hable,
injury,
the sole cause of
need
added).
harm.”
cause of such
his
con-
but it is sufficient that
“Where, because
exception provides:
curring
negli-
with one more efficient
otherwise,
of time or
lapse
gent
proximate
acts
third
is a
persons,
by the
harm another threatened
prevent
injury.” Schmeling,
S.D.
negligent conduct
actor’s
found
(additional
19,
these time Ro- lapse of between
[¶ 30.] The and
zell T-Lakota’s conduct Town- significant as to
ship’s conduct is not so T-Lakota of all
relieve Rozell and
majority opinion’s
as
law. The
a matter of
too far. The Dawn Defendant sign Appellant. between reinstallation long is not so as neces- Braun’s accident No. 22024. injuries any future unfore- sarily render independent Additionally, seeable. Supreme Court of South Dakota. *8 maintain statutory on Briefs April Considered re- appropriate signs completely cannot Decided June lieve Rozell T-Lakota of all for their conduct. The interven- Township, reinstalling act of entirely supersede opera-
does not “so negligence
tion of [Rozell T-Lakota’s] alone, without [their] thereto, injury.”
contributing produces 8, 18,
Schmeling Jorgenson, S.D. (citation omitted). (1957)
N.W.2d Rozell, conduct of