Lead Opinion
[¶ 1.] Plaintiff Larry Braun (Braun) and defendant New Hope Township (Township) appeal from the trial court’s order granting summary judgment in favor of defendants T-Lakota Acres, Inc. (T-Lakota) and Scott Rozell (Rozell). T-Lakota and Rozell were allegedly negligent in either removing or failing to properly reinstall a township-road sign that warned of a washout. Township reinstalled the warning sign after T-Lakota’s and Rozell’s alleged negligence. After entry of summary judgment, Township remained the sole defendant. We affirm.
[¶ 2.] The winter of 1996-97 produced heavy snowfall in the Township. The following spring, seven Township roads were washed out by runoff from the melting snow. To protect the public, Township installed a “ROAD CLOSED” sign about three-quarters of a mile from one of the washouts. The sign was mounted on a post in the center of the road.
[¶ 3.] On May 23, 1997, Ron Backman (Backman), an employee of T-Lakota, drove T-Lakota’s tractor to Rozell’s farm to deliver a 24-foot-wide farm implement. Backman also intended to help Rozell plant soybeans on the Rozell farm. As Backman proceeded toward the farm, he observed the “ROAD CLOSED” sign in the middle of the road. In order to get to Rozell’s farm with the implement, Back-man had to remove the sign from the middle of the road. When Backman pulled the sign out of the road, a portion of the post broke, and he placed the sign on the side of the road.
[¶ 4.] When the planting was completed at Rozell’s farm, Backman and Rozell met to try and put the sign back up. They were not successful. They were only able to prop the sign up against a pile of rocks in the middle of the road. Before leaving, Rozell told Backman that Rozell would return later and put the sign up with a post maul.
[¶ 5.] Rozell, however, forgot to fix the sign. When he did return a few days later, Rozell found that the sign was already reinstalled by someone else. It was later discovered that Township learned the sign was down, and two members of the Township Board reinstalled it. They did not, however, reinstall the sign in the middle of the road. Instead, they reinstalled it on the right side of the road. Because the fence post was broken, the sign was also somewhat shorter than it was before Backman removed it.
[¶ 6.] On June 13, 1997, about three weeks after the sign was reinstalled by Township, Braun was driving his Suburban on the road in order to examine his sum flower field. As he drove past his-field, Braun descended down a hill toward the creek that had washed out. Braun claims that he did not see the sign on the right side of the road. He also claims that he did not see the washout in time to avoid it. Braun was unable to stop before driving into the wash-out. He was severely injured as a result of the accident.
[¶ 7.] Braun sued Township and T-Lakota for the injuries he sustained. Both defendants denied responsibility and asserted affirmative defenses. After depositions were taken, T-Lakota moved for summary judgment. The motion was initially denied. After further depositions were taken, Rozell was joined as a third-party defendant. T-Lakota subsequently renewed its motion for summary judgment. Rozell joined in the motion. The trial court ultimately granted the motion. The trial court concluded that Township’s alleged negligence was a superseding cause that relieved Rozell and T-Lakota (Backman) of liability for their alleged negligence. Braun appeals.
STANDARD OF REVIEW
[¶ 8.] In reviewing a grant or a denial of summary judgment under SDCL 15-6-56(c), we must determine whether the moving party demonstrated the absence of any genuine issue of material fact and [established] entitlement to judgment on the merits as a matter of law. The evidence must be viewed most favorably to the nonmoving party[,] and reasonable doubts should be resolved against the moving party.... Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied.
South Dakota State Cement Plant Com’n v. Wausau Underwriters Ins. Co.,
[¶ 9.] In this case the disposi-tive issue questions whether a third party’s
ANALYSIS AND DECISION
[¶ 10.] We have previously recognized the common law rule that intervening/superseding causes may relieve a negligent actor from that actor’s antecedent negligence. “When the natural and continuous sequence of causal connection between the negligent conduct and the injury is interrupted by a new and independent cause, which itself produces the injury, that intervening cause operates to relieve the original wrongdoer of liability.” Schmeling v. Jorgensen,
[¶ 11.] Although we have acknowledged this rule in a number of cases,
[¶ 12.] The intervening/superseding cause analysis questions the extent of the obligation, or duty, of the original actor who was negligent. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 44 at 301 (5th ed.1984). Although the question is often expressed in terms of “cause” or “proximate cause,” those terms avoid the real issue. The appropriate question “is one of negligence and the extent of the obligation: whether the [original actor’s] responsibility extends to such interventions, which are foreign to the risk the [original actor] has created. It is best stated as a problem of the scope of the legal obligation to protect the plaintiff against such an intervening cause.” Id. at 313.
[f 18.] Although Township’s alleged negligence was an intervening cause, not all-intervening causes relieve the original actor of liability. As we stated in Schmeling, the intervening cause must also be a superseding cause. Schmeling, 77 S.D. at 19,
[¶ 14.] The determination of when an intervening cause becomes a superseding cause is based on a number of factors. Restatement at §§ 441(2), 442-58. Two common factors are the relationship of the parties and foreseeability. Lagow,
[¶ 15.] More specific rules for determining whether a third party’s actions become a superseding cause are set forth in § 452 of the Restatement. Generally, “the failure of a third person to act to prevent harm to another threatened by the actor’s negligent conduct is not a superseding cause of such harm.” Restatement at § 452(1). There is, however, an exception that is the issue in this case. “Where because of lapse of time or otherwise, the duty to prevent harm to another threatened by the actor’s negligent conduct is found to have shifted from the actor to a third person, the failure of the third person to prevent such harm is a superseding cause.” Id. at § 452(2) (emphasis added). In such cases the duty, and therefore the entire responsibility, shifts to the third person and the original actor is relieved of liability. Id. at § 452(2) com. d.
[¶ 16.] In order to determine whether an actor’s liability is shifted to a third person, one must look to see if the intervening cause was foreseeable. Prosser & Keeton, supra, § 44 at 302. The risk created by the original actor may include the intervention of the foreseeable negligence of others. Id. If such intervening negligence was foreseeable, the original actor remains liable because “[fjoreseeable intervening forces are within the scope of the original risk ....” Id. § 44 at 303. As we noted in Lagow, “[f]oreseeability of high risk of harm is the basis for delineating the boundaries for a duty of protection.” Lagow,
[¶ 17.] In deciding that question, it is significant that Township had an independent statutory duty to erect and maintain adequate barriers and signs to protect the public from damaged township roads. SDCL 31-32-10 provides that a township is responsible for the maintenance of its highways if they are damaged by a flood. The statute specifically requires townships to “erect guards over such defect or across such highway of sufficient height, width, and strength to guard the public from accident or injury....” Id. Additionally, SDCL 31-28-6 requires townships to erect “substantial and conspicuous warning sign[s]” on the right-hand side of the highway for “point[s] of danger.” These statutes create a duty of care. See Lagow,
[¶ 18.] It is also significant that this accident happened after Township affirmatively acted under these statutes to remedy the danger. Because Township reinstalled the sign before the accident, T-Lakota’s and Rozell’s acts or omissions were no longer creating the condition or
[¶ 19.] Prosser has expressly recognized the superseding responsibility of third parties like Township, who become aware of a danger and deal with it before the original actor’s negligence has caused harm. Prosser notes that in those situations, an original actor is sometimes “free to assume that when a third party becomes aware of the danger, and is in a position to deal with it, the third person will act reasonably. It is only where misconduct was to be anticipated, and taking the risk of it was unreasonable, that liability will be imposed for consequences to which such intervening acts contributed.” Prosser & Keeton, supra, § 44 at 313. If a third person “fully discovers the danger, and then proceeds, in deliberate disregard of it ... to inflict upon the plaintiff the danger which the third person has discovered” the responsibility is shifted to the third party. Id § 44 at 318-19. Under these circumstances, T-Lakota and Rozell could not have foreseen that Township, having reinstalled the sign, would have done so in a manner which allegedly did not meet Township’s duty.
[¶20.] Similar situations were considered in Oklahoma and Minnesota. In Greenwood v. Lyles and Buckner, Inc.,
[¶ 21.] The Oklahoma Supreme Court held that the State’s action, in maintaining the road in a dangerous condition after it accepted the company’s work, constituted an intervening [superseding] cause. Id. at 1066. The court phrased the question, “Mould the [construction company] have reasonably anticipated that the State Highway Department would permit the public to use this road in its dangerous condition without erecting some form of warning signals or barriers?” Id. The court answered that it was not foreseeable that the State would neglect its duty to the extent of allowing the public to travel on the road in its dangerous condition beyond whatever time it would take to remedy such condition. Id. at 1067. The court concluded, “[w]e do not think reasonable [minds] would differ on this question. We hold that ... it could not have been reasonably anticipated that the State Highway Department would permit public travel over this road for a period of seven months without ever taking precautions to guard against accidents ....” Id.
[¶ 22.] In Goar v. Village of Stephen,
[¶ 24.] In this case, no injury occurred between the time of T-Lakota’s and Rozell’s alleged negligence and the time Township reinstalled the sign. When Rozell returned
[¶ 25.] Affirmed.
Notes
. Any dispute about the facts of the accident may be material to Braun's alleged contributory negligence, but that dispute is not material to the issue of duty.
. See State v. Lamont,
. Although the Minnesota Supreme Court phrased the issue in terms of causation, "duty” and "causation” are often used interchangeably. In any event, the result is the same whether the issue is phrased in terms of “duty” or "causation.”
. T-Lakota argues that Rozell's assurance to Backman that Rozell would reinstall the sign was also a superseding cause. Responsibility may be shifted by an agreement between the original actor and a third person. Restatement at § 452(2) cmt. e. The Restatement’s illustration is apposite:
A is one of a crew of workmen employed by a construction company to excavate a trench in the public highway. One of A's duties, at the close of a day's work, is to set out barriers and warning flares for the protection of travelers on the highway. A forgets to do so before going home at the end of the day. When halfway home he remembers, and returns to the scene, intending to make good his neglect. There he meets B, the foreman of the company, who tells him to go on home, promising that he, B, will look after the barriers and flares. A goes home. B in turn forgets, and the trench is left without guard, lights, or warning. During the night C, a traveler on the highway, drives into the trench and is injured. A is not liable to C.
Id. § 452(2) illus. 5. We agree that, as between T-Lakota and Rozell, the responsibility shifted to Rozell.
Dissenting Opinion
(dissenting).
[¶ 28.] I dissent. The majority opinion holds that the conduct of Township in improperly reinstalling the warning sign was an intervening superseding cause precluding a finding of negligence and relieving Rozell and T-Lakota from any liability. In reaching this result, the majority opinion incorrectly relies on Restatement (Second) of Torts § 452(2).
[¶ 30.] The lapse of time between Ro-zell and T-Lakota’s conduct and Township’s conduct is not so significant as to relieve Rozell and T-Lakota of all liability as a matter of law. The majority opinion’s statement that: “If Rozell or T-Lakota were liable in such a case, nothing would prevent them from being liable if the accident were to occur ten years later[ ]” goes too far. The three-week lapse in time between the reinstallation of the sign and Braun’s accident is not so long as to necessarily render any future injuries unforeseeable. Additionally, the independent statutory duty of Township to maintain appropriate signs cannot completely relieve Rozell and T-Lakota of all liability for their negligent conduct. The intervening act of Township, reinstalling the sign, does not “so entirely supersede the operation of [Rozell and T-Lakota’s] negligence that it alone, without [their] negligence contributing thereto, produces the injury.” Schmeling v. Jorgenson,
[¶ 31.] Furthermore, this Court has stated: “[N]egligence, to render a person hable, need not by the sole cause of injury, but it is sufficient that his negligence concurring with one or more efficient negligent acts of third persons, is a proximate cause of the injury.” Schmeling,