Louie DeLAIR, Plaintiff and Appellant, v. COUNTY OF LAMOURE, Township of Sheridan, Walter Piehl and Hattie Piehl, Defendants and Appellees
Civ. No. 10205
Supreme Court of North Dakota
Oct. 27, 1982
326 N.W.2d 55
Letnes, Marshall, Fiedler & Clapp, Grand Forks, for defendant and appellee County of LaMoure; argued by Jay Fiedler, Grand Forks.
Zuger & Bucklin, Bismarck, for defendant and appellee Township of Sheridan; argued by James Hill, Bismarck.
Fleck, Mather, Strutz & Mayer, Bismarck, for defendants and appellees Walter Piehl and Hattie Piehl; argued by Steven Storslee, Bismarck.
Louie DeLair [DeLair] appealed from summary judgments1 dismissing his negligence action against LaMoure County [LaMoure], Sheridan Township [Sheridan] and Walter Piehl and Hattie Piehl [Piehls] for injuries sustained in the early morning of 12 July 1980 when the motorcycle he was operating ran into a fence located on land owned by the Piehls in Sheridan Township, LaMoure County, North Dakota.
The principal facts are not in dispute, and the following diagram showing the section lines, roads, fence, stop sign, and location of the impact, and other pertinent information, will be helpful in resolving the issue presented.
DeLair drove his motorcycle on the improved Sheridan Township gravel road coming from the east, going west, and apparently went across county highway 61 onto the approach and into the fence gate. The fence and gate are on the Piehls’ property. The city of Marion‘s boundaries coincide with the boundaries of Section 10. According to affidavits and depositions submitted by the parties, the section line between Section 10 and Section 15 never has been an improved road.
The record is not clear as to whether or not DeLair stopped at the stop sign at the intersection. DeLair was in a coma for approximately a month after the accident, and his deposition reflects that he could not remember the events of the day of the accident. The passenger on DeLair‘s motorcycle, Todd Schultz, did not remember if DeLair stopped at the stop sign.
According to depositions, DeLair had been at a party prior to the accident and had consumed between six and ten beers. DeLair testified in his deposition that he traveled on gravel roads and not highways when he had been drinking, and he would usually go through stop signs when no one was coming on the intersecting road.
At least one other motorcycle traveled the same route on the night of the accident. The depositions of Lee Luck and Craig Headland reflect that they left the party with DeLair and followed DeLair‘s motorcycle at a speed of approximately 55 miles per hour. They further testified that the motorcycle they were on went through the stop sign without stopping, and onto the approach, and through a hole in the gate made by DeLair‘s motorcycle. Neither Luck nor Headland saw the accident involving DeLair, and they did not know if DeLair stopped at the stop sign. DeLair ultimately pleaded guilty to a charge of careless driving in connection with the accident.
DeLair initiated the instant action against the named defendants. Motions for summary judgment were made and the court, in response to the motions, granted summary judgment in favor of LaMoure, Sheridan, and the Piehls, dismissing the complaint. The trial court, in its memorandum opinion, concluded that the undisputed facts established that the point of impact occurred on a designated public roadway which was neither maintained nor supervised as a part of a county or township road
DeLair contended that the trial court erred in determining no duty was owed to him by LaMoure, Sheridan, and the Piehls. DeLair raised several subissues which he contended supported his position that there was a duty.
The question of duty must be considered within the framework of our law on summary judgment. The summary judgment procedure of
Generally, negligence actions are not appropriate for summary judgment. Kirton v. Williams Electric Co-op., Inc., 265 N.W.2d 702 (N.D.1978). However, a negligence action presupposes the existence of a duty, Larson v. Meyer, 135 N.W.2d 145 (N.D.1965), and whether or not a duty exists in a negligence action is a matter of law to be resolved by the court before allowing a jury to hear evidence concerning a breach of that duty and proximate cause. Lumpkin v. Streifel, 308 N.W.2d 878 (N.D.1981). See, W. Prosser, Law of Torts, (4th ed. 1971), p. 206. Consequently, if LaMoure, Sheridan, and the Piehls did not have a duty to DeLair, then summary judgment dismissing DeLair‘s complaint was proper.
The trial court‘s memorandum decision relied upon the following language from Belt v. City of Grand Forks, 68 N.W.2d 114, 120 (N.D.1955), to support its conclusion:
“It is well settled that a city has the right to improve and open for public travel only a portion of a platted street, and a city is not liable for injuries to persons using a portion of the street which a city has not undertaken to improve.”
The trial court then stated that “One could simply substitute the word county or township for city and have the same substance of the law.”
DeLair contended that the trial court‘s reliance on Belt, supra, was misplaced because section lines outside of city limits are considered public roads regardless of the section line being opened by a governing board and regardless of the section line being traveled, citing
“In all townships in this state, outside the limits of incorporated cities, and outside platted townsites, additions, or subdivisions recorded pursuant to chapter 40-50, the congressional section lines shall be considered public roads, to be opened to the width of two rods [10.06 meters] on each side of such section lines, where the same have not been opened already upon the order of the board having jurisdiction, without any survey being had, except where it may be necessary on account of variations caused by natural obstacles, subject, however, to all the provisions of this chapter in relation to assessments of damages.
“The county commissioners, if petitioned by a person having an interest in the adjoining land or a portion thereof, are authorized, after public hearing and a finding by the commissioners of public benefit, to close section line roads or portions thereof which are not used for ten years, are not traveled due to natural obstacles or difficulty of terrain, are not
required due to readily accessible alternate routes of travel, or are intersected by interstate highways causing such section line road to be a dead end, providing the closing of such dead end section line road does not deprive adjacent landowner access to his property. After such section line roads are closed, they may be leveled and farmed by the adjacent landowners or tenants. However, if drainage is interfered with due to the farming operations, alternate means of drainage must be provided for by the landowners or tenants farming such lands.” [Emphasis added.]
A brief history of this section will be helpful to understand the issue raised by DeLair.
The
“In all townships in this state in which no public roads have been laid out or which have not been organized, the congressional section lines shall be considered public roads, to be opened to the width of two rods on each side of such section lines, upon the order of the board of supervisors, without any survey being had, except where it may be necessary on account of variations caused by natural obstacles, subject, however, to all the provisions of this chapter in relation to assessment of damages.”
The statute was amended in 1899 by Ch. 97, which provided, in part, as follows:
“In all townships in this state outside the limits of incorporated cities, villages or towns, the congressional section lines shall be considered public roads, to be opened to the width of two rods on each side of such section lines, where the same have not already been opened upon the order of the board having jurisdiction as provided by section 4 of this chapter without any survey being had, except where it may be necessary on account of variations caused by natural obstacles, subject, however, to all the provisions of this chapter in relation to assessment of damages.” [Emphasis added.]
In 1965, the Legislature, through S.L. Ch. 201, § 1, permitted the closing of section lines which were intersected by interstate highways providing the closing of the section line road “does not deprive [a] landowner access to his property.” In 1974 this Court, in Small v. Burleigh County, 225 N.W.2d 295 (N.D.1974), held that congressional section lines outside the limits of incorporated cities, unless closed by proceedings permitted by statute (section lines intersecting interstate highways), are open for public travel without the necessity of any prior action by a board of township supervisors or county commissioners.2
DeLair‘s argument concerning section lines being considered public roads apparently admits, for purposes of this issue, that
Because the section line between Sections 10 and 15 is not outside the limits of an incorporated city, we do not believe that congressional section line is a public road pursuant to
Notwithstanding the language of
We recognize that the phrase “outside the limits of incorporated cities” was added to our statutory provision in 1899. All section lines were declared public highways in 1871 prior to the addition of that phrase. According to the position urged by DeLair, the addition of the phrase “outside the limits of incorporated cities” would be surplusage because all of the section lines, even if within the limits of an incorporated city, would already be public roads and would fall within the “once a highway - always a highway” concept.
If DeLair‘s contention is correct that every section line is a public road and will continue to be a public road no matter what, we can envision all kinds of problems and ultimate chaos, particularly in cities.
We cannot endorse DeLair‘s construction because it would overlook the principle that meaning must be given, if possible, to every word, clause, and sentence in a statutory enactment. In the Interest of P.W.N., 301 N.W.2d 636 (N.D.1981).
Furthermore, we do not believe the authorities cited by DeLair stand for the proposition that a public road open for public travel on a section line, as contemplated by
Based on these observations, we conclude a public road, as contemplated by
DeLair also contended that the Piehls owed him a duty not to obstruct a highway in a manner to prevent free use by the public (
We also are not persuaded
“A municipal corporation is only required to guard against such dangers in its streets as can or ought to be anticipated or foreseen in the exercise of reasonable prudence and care.” Belt v. City of Grand Forks, supra at 120.
DeLair further contended that a municipal corporation and a private party can be liable even when obstructions are off the highway or road and on private land. DeLair asserted that LaMoure, Sheridan, and the Piehls all had a basic duty for the protection of others against unreasonable risks.
DeLair cited 39 Am.Jur.2d, Highways, Streets, and Bridges, § 402, which provides as follows:
“It is well settled that it is the duty of the public authority to erect railings or barriers along the highway at places where they are necessary to make the way safe and convenient for travelers in the use of ordinary care, and that such public authority is liable for injuries to travelers resulting from a breach of its duty in this regard. This is true even though the danger arises from structures or excavations outside the highway and on the land of adjoining owners, when such structures or excavations are in the general direction or course of travel upon the highway.”
DeLair also cited 39 Am.Jur.2d, Highways, Streets, and Bridges, § 530, which provides as follows:
“The mere fact that property abutting a highway or street is unsafe for travel is not enough to impose liability upon an abutting owner for injuries sustained by travelers who enter thereon. An abutting owner under ordinary circumstances is not bound to keep that part of his premises not immediately adjacent to a highway in a safe condition in anticipation that a traveler may accidentally wander thereon, or intentionally pass thereon from the highway, and sustain injury. However, the general rule, with some authority to the contrary, is that an owner of property adjoining or abutting on a public highway who makes an excavation on his property near the highway or creates or permits some condition to exist there which renders travel on the highway unsafe, without taking reasonable precautions to guard against the danger thus created and to warn or protect travelers therefrom, may be held liable to a traveler, himself in the exercise of due care, who is injured in consequence of the dangerous condition existing, when he deviates from the highway unintentionally or from some necessity.”
In Belt v. City of Grand Forks, supra, at 121, we said:
“We do not think that a city is chargeable with liability for failure to maintain barriers, lights or warning signs or notices at the point of an offset or jog in a street, where the same could not constitute a dangerous situation to a prudent driver.” [Emphasis added.]
These authorities, as well as cases cited in 39 Am.Jur.2d, Highway, Streets, and Bridges, §§ 402, 403, 404, and 530, stand for the proposition that there is a duty to erect barriers or railings along highways and roads to make the way safe from hazardous or dangerous conditions for travelers using ordinary care. A necessary corollary is that there is no duty to put a guardrail or barrier on a road where a dangerous or unusually hazardous condition does not exist for travelers exercising ordinary care. These principles necessarily require that the streets are used lawfully. The duties of the various political subdivisions in connection with building and maintaining roads do not include a lagniappe in the form of additional precautionary measures to protect persons from their own careless acts. Interrelated with these concepts are the principles that counties and townships cannot be insurers against accidents because their resources are limited and must be used as efficiently as possible.
Accordingly, based on the undisputed facts7 of this case and the earlier-cited principles of law, we conclude there was no duty on LaMoure, Sheridan, or the Piehls because the intersection, controlled as it was by a stop sign, did not represent an unreasonable risk or dangerous condition to prudent individuals lawfully using the road.
The judgments of the district court are affirmed.
ERICKSTAD, C.J., and VANDE WALLE, J., concur.
GARAAS, D.J., sitting in place of PAULSON, J., disqualified.
PEDERSON, Justice, concurring in part and dissenting in part.
Summary judgment disposition of DeLair‘s claims against LaMoure County and Sheridan Township is appropriate under Article I, § 9, of the North Dakota Constitution, and for the reasons stated by Justice Sand. The Piehls, however, are individuals whose alleged negligence, it is claimed, caused DeLair‘s injury. Even though DeLair‘s claim against the Piehls may seem preposterous, it should not have been disposed of summarily. See Gowin v. Hazen Memorial Hospital Ass‘n, 311 N.W.2d 554 (N.D.1981).
GARAAS, District Judge, dissenting.
Summary judgment disposition of the claims of DeLair is not appropriate. I agree with that portion of the majority opinion wherein the Court holds that the area where the accident occurred is not a public road in that it is within an incorporated city.
Irrespective of the fact the road was a non-public road, there remains an obligation on the part of LaMoure County and Sheridan Township to comply with both
Whether the intersection involved in the accident in this case is a dangerous situation is a question of fact. Whether the county and township have complied with the specifications is also a question of fact.
The majority opinion has found facts to exist. These facts were never found to exist by the trial court and were not conceded to exist by the parties. On this ap-
“--- we conclude there was no duty on LaMoure, Sheridan, or the Piehls because the intersection, controlled as it was by a stop sign, did not represent an unreasonable risk or dangerous condition to prudent individuals lawfully using the road.”
Another finding of fact made by the majority is as follows:
“--- however, we believe that the intersection, controlled as it was by a stop sign, was not a dangerous or unusually hazardous condition to a driver exercising ordinary care and driving within the limits of the law.”
The Supreme Court, in a continuation of an unauthorized trend, is once again acting as a trier of fact. The fact finding function is not vested with the Supreme Court in that trial de novo has been abolished in civil cases. Thus, this trend should no longer be engaged in.
The majority opinion has found facts in dispute to support its position as follows: 1) that the stop sign was an adequate warning; 2) that the stop sign was properly located; 3) that the intersection was not a dangerous situation; 4) that the fence as a dangerous barrier to the traveling public could not be forseen as dangerous in the exercise of ordinary care; 5) that DeLair did not exercise ordinary care; 6) that DeLair used the highway unlawfully; and 7) that no engineering defects exist in the construction and planning of the intersection.
Defendants Walter Piehl and Hattie Piehl, as adjacent landowners, also owe a duty to the DeLair and the traveling public to not allow a condition to exist which renders travel unsafe, a point conceded by the majority opinion. Whether the Piehls were negligent or not in this respect is an issue of fact. The Supreme Court cannot make a determination and find as a fact that the Piehls were not negligent. I agree with the dissent of Justice Pederson who holds that the action against the Piehls cannot be disposed of summarily.
The law clearly delineates the powers of the trial court and the powers of the Supreme Court. The Supreme Court, in usurping the trial court‘s power as a fact finder, creates untold problems with the litigants and encourages numerous unnecessary appeals. If the Supreme Court is to grant trial de novo, the law should be changed to permit it to do so. Until that happens, the Supreme Court must limit itself to the functions vested with an appellate court on review and trust the trial courts to function as triers of fact.
PAUL M. SAND
JUSTICE