*1 al., COUNTY, Appellants Respondent et v. HUTCHINSON JENSEN
(166 827) N.W.2d - (File 11, 1969) Opinion April Nos. 10531 10533. filed Rehearing May 14, denied *2 Buechler, Weisensee, Lennox, George Milton Falls, Sioux for plaintiffs appellants. and
Woods, Fuller, Smith, Sommervold, Shultz & A. and D. Sioux Falls, respondent. for defendant and
BIEGELMEIEFl, Presiding Judge. Eldon was the driver and Elsie Jensen Eunice Jensen passengers which, were in an automobile on Jensen November 6, 1965, negotiate failed to a turn in a road in Hutchinson resulting injuries in their and these three actions county. complaints The and actions were dismissed with prejudice on their for merits failure to state a cause of action granted upon appeals which relief could be therefrom were they question. consolidated involve the same complaints The alleged driving Eldon was northerly his car in a Jensen direc- road, sharply tion on the which turns to the east and by previous had been rebuilt defendant summer signs down; constructions when all were taken prior that to de- rebuilding fendant's road curve was marked sign appropriate an and after completed construction was sign failed to defendant this or a kind at an appropriate required by distance the curve as failing and due defendant's to mark replac- ing curve, danger sign, proper or slow the driver of the car caught by surprise failed to turn the automobile gravel time, up it was on so shoulder of the road and causing upset plaintiff; negli- to each the defendant's injuries gence proximate plaintiff. was the cause to each liability townships has be and counties been v, among being cases, Bailey fore the court in numerous them 881; 393, 219, Am.St.Rep. County, S.D. 59 N.W. Lawrence 522; 606, Hanigan County, 47 S.D. 201 N.W. Rea v. Minnehaha 762; ney County, Williams v. 69 S.D. 10 N.W.2d v. Union 493; Wessington Township, Lipp S.D. 14 N.W.2d v. Cor 172; Dohrman v. Law son 76 S.D. 78 N.W.2d In all these cases rence 865. stated, law, that counties and the court is now settled injuries townships are not liable under the common law for negligent construction, persons for maintenance wholly statutory. highways, and *3 controlling, Supp. Plaintiffs state SDC 1960 28.0913 agree However, plaintiffs and we that it is. then mention SDC bearing case, Supp. may have some on the we directing Highway discuss it first. After that the State Commis specify may sion shall guides such cause be erected standard warning signs along necessary as it deem Highway System, provides: Trunk State that section then "The board or officer it is to whose re- pair any public highway or maintain shall erect points conformity maintain at with standard uniform turn, practices any sharp traffic control on each side of crossing, point blind on such * * * way conspicuous a substantial and warn- ing sign, right which shall be on the hand side danger". highway approaching point such Hanigan quoted syllabus Bailey In the court 2 of the v. County opinion Lawrence as follows: " 'Notwithstanding that the statute of this state im- poses upon county the boards of commissioners the * * * bridges keeping in the ab- making express county sence of an statute such liable damages neglect by to an action for caused of such against duty, county by private no action lies in- * * * dividual.' must therefore find "In view of that settled rule we recovery express permitting from counties be- an statute justified holding coun- fore we would be Minnehaha ** ty liable finding resting rule, the decision on that Not statute statute, express by concluded "as no is created Min- it . question." nehaha is not liable for the That has been doctrine adhered the court in the later opinions paragraph Supp. cited above. The second of SDC 1960 28.0913 does in some cases create a cause of action public corporations "any named but is limited to violation (emphasis supplied). this section" No other statute has been damage called to our attention that makes liable for resulting Supp. from a violation of SDC 1960 fol- it premised lows this action cannot be thereon. plaintiffs'
This leaves claim that is liable appli under SDC 1960 28.0913.1 So far as here cable 28.0913 is the same now as before amended Ch. Laws of 1951. The amendment § only time to extended erect a over the defect paragraph 24 to hours and added a as to notice and ex cluding liability under SDC 61.0144. The court has heretofore *4 statute, determined the is not liable under the SDC 1960 by plaintiffs. Reaney relied on In v. Union Coun ty, supra, the court wrote: provides: highways, duty county, bridges, “Defective section culverts:
1. This of town- ship municipality repair; by person injured. guard damages or to and action In any highway, part destroyed culvert, bridge shall case of safety statutory or become or in whole or out repair by floods, fires, endanger reason of cause to such extent as to the duty public body travel, governing be the of shall of the or board under duty highway, upon culvert, bridge receiving to maintain such or notice protection public safety, cause to be erected for the travel thereof to of and within forty-eight thereafter, guards hours substantial over high- such defect or across such way width, height, strength guard of sufficient to the from accident in- or repair jury to the same within a reasonable time any thereafter. It shall also be the duty body public highway, governing guard or of such board to abandoned cul- or in like manner. vert person “Any person who shall sustain to or reason county, township, of this section shall have a cause of action violation may city, * * *” the case be for he or town as such have sustained. general duty reasonably "The broad to maintain a safe eliminated, highway specific duty has been guard damaged highway to * * * (and county) been has retained that the failed signs warning to install of the * * * cannot, legitimate con- struction, brought language within be the embrace of the SDC 28.0913." obligation spelled out in The the statute in the following words:
cause to be erected
"it shall be
* * *
governing
substantial
body
guards
[*]
[*]
[*]
over
to
height,
such defect or across
such
of sufficient
width,
strength
to
from accident
injury".
damage
only
driving part
This can
mean
to
of the
signs.
apply
be
cannot
construed
Dohrman v. Law
guards
supra.
requirement
clearly
rence
The
of the
in
properly prevent
person
dicates
intention is
warn and
driving
washout,
driving
into a
hole or other defect
in the
Lipp
surface.2
court said the same in
v. Corson
343, 346,
It is violation of play which into the cause of action sentence thereof. There is no in that section with signs. Judge reference erection curve or similar While Reaney it, opinion expressly Smith did not refer both 2. The court N.W. 794. of six approved weeks’ *5 recovery duration for failure in Clementson to erect a v. Union guard to County, protect [63] washout in [256] appellant's respondent's discuss what cite and briefs 28.0901, Supp. Laws 1941. The is now then Ch. SDC February when that accident occurred briefs show that alleged complaint in Plaintiff's amendment was effect. argued complied that section never with in
brief Union signs. regard The court held failure to erect maintain warning sign against of a curve did not create a cause of action county. supra, complaint Dohrman v. Lawrence al-
The in warning signs leged and maintain under both a failure to erect Supp. and 28.0913. Defendant's brief claimed SDC 1960 28.0901 duty requirement not an included under SDC 1960 signs Supp. to install The court said a failure 28.0913. warning danger steep or hill not duty under and con- a violation sequently no of action was stated the defendant cause county. 28.0913 and the current SDC 1960
That SDC here) (of change phraseology applicable far as much no so limited the under 8589 Rev.Code of § clearly appears Reaney opinion from the where the court said:3 pro- omits the
"It will be observed that the revision charging supra, with the vision of § bridges public highways, keep culverts and 'to safe, passable them in such condition as render persons or or of accident free from thereof;' retains in the lawful use while charging guard provisions it with repair highways which become whole floods, fires, repair by or out of reason of causes, other and with the abandoned highways. maintains this omission is scope intention to narrow the of its indicative of an negligence maintenance. appear supra. expressions 3. Similar in Dohrman v. Lawrence *6 * * [*] The conclusion is unavoidable that the lia- bility abridged county of the has been revision. purposes opinion
"For may of this it be as- county duties, sumed that had been derelict in its viz., tp signs warning it had failed install mediately to a narrow approach to a curve leading [*] * im- * However, county these derelictions on the of the cannot, legitimate construction, brought be within the language embrace of the of SDC 28.0913. The did not become defective in the described cause it had 'become [*] * respects or out of re- be- pair by reason' of cause." quote Kelley,
Plaintiffs from Minnehaha S. D. v. Cir., support 150 F.2d for their contention that be county bridge. of a to maintain and a The later opinion Miller, Cir., of that court in Turner S. D. v. 820, recognized F.2d liability the limitation of we here deter- when, quoting mine after the trial court's instruction that refer- " negligence ences of the meant 'failure to erect this " " thing' ", particular barricade' 'should be limited to that Appeals "correctly the Court of said the instructions limited the (SDC 28.0913). County imposed by to that statute" dismissing It follows the trial court was correct the actions judgments are affirmed. RENTTO, JJ., ROBERTS and concur. HOMEYER, JJ.,
HANSON and dissent.
HANSON, Judge (dissenting).
I am unable concur. Following plaintiffs a sep- one car accident commenced against alleging arate actions Hutchinson "warning" negligently failed to a "curve" or at a county highway. complaints on a Their were my opinion prejudice. dismissed on the and with In merits allege complaints and the cases should be cause of action merits. heard on the right no
As there is common law of action *7 negligent highway of a the in this state for maintenance follow- ing statutory remedy: provision provides the exclusive culvert, any highway,
"In case or shall be- repair or in whole or of come out floods, fires, as cause to extent reason of such travel, endanger safety public the the of it shall be to governing statutory body duty of the or board under culvert, bridge upon highway, to maintain such or receiving to be notice thereof to cause erected for public safety, forty-eight protection of travel and within thereafter, guards such defect hours substantial over width, height, highway sufficient or across such of guard strength injury public from accident or to repair a time there- to the same within reasonable * * after.
"Any person injury person or who shall sustain to property reason violation of shall of this section county, township, have a cause of action city, as or town as the case be * * may have sustained SDC 1960 he 28.0913. obligation
Obviously, a this under main repair county highway which en- to all defects in a statute is danger safety Incidentally also travel. the statute secondary duty upon temporary imposes a to erect guards defects, needed, repairs until are made. over where county's question a in these cases whether
The critical warning replace in a a at a failure jurisdiction highway re- under its renders "out * * purview of pair by other cause" within the reason so, obligated repair If the above statute. or guards erecting the same and the incidental highways simply application over defects has no to such defect. previously pointed present
It has been out that our statute (SDC 28.0913) orig- is more in nature than restrictive inally provided in Sections 8589 and Rev.Code of recovery keep which allowed for failure "to bridges ways, culverts in such condition render them safe, passable free of accident persons while the lawful thereof". use Comment- ing Reaney on this restrictive v. revision Union general the Court said: "The broad eliminated, reasonably to maintain a safe has been damaged specific or des- troyed highway has been retained". *8 Reaney Court went on the case conclude a coun- signs warning
ty's
danger
adequate
failure
install
of
incident
leading
sharp
approach
a
to a narrow
guardrail
provide
bridge approach
failure to
a substantial
on the
meaning
not
were
actionable
derelictions
of
within
of
the
described
respects
as "The
because
highway
it had 'become
did not become defective in the
*
[*]
[*]
repair by
or out of
reason' of
cause. These defects were in-
design
plan
highway
herent
the
provided
the
public,
present
and we conclude
that
statute does not
injuries
plaintiff
remedy
proximately
afford
a
there-
caused
by."
county's
For the same reasons
a
failure to install
signs warning
danger
steep
of
a
incident
curve on a
hill was not an actionable
violation of
under our statute.
Dohrman v. Lawrence
82 S.D.
Significantly, in the involved their and Dohrman cases so ab- had never been existence damaged, defect sence could not be considered a which des- troyed, repair. pres- or caused the to be out of In the alleged warning sign dangerous ent action it is to the During originally curve had been installed and maintained. warning sign some road construction was removed replaced. never dangerous
Unless curve was eliminated the road construction under was the warn- ing sign as directed in SDC 1960 28.0901:
"The
board or officer whose
it is to re-
pair
any public highway
or maintain
shall erect and
points
conformity
maintain at
with standard
uniform
practices
turn,
traffic control
any sharp
on each side of
crossing,
danger
point
blind
on such
**
way
conspicuous
a substantial
warn-
ing sign,
right
which
shall be on the
hand side of
approaching
danger
point
¥ ¥
discharge
It
be assumed
authorities
in the
their duties under
this statute have a measure
of discretion in
determining
curves, crossings,
points
what
and other
warning sign
require a
and failure to erect or install one is not
actionable,
ordinarily
Reaney
v. Union
and Dohrman v.
However,
supra.
present
Lawrence
in the
action in
governmental
exercise
its
discretion
deter
question
mined the curve in
and erected a warn
*9
ing sign.
integral
physical
part
It then became
of the
highway.
appurtenant
As an
of the
continuing duty
sign
keep
had a
to maintain and
in reason
repair
travel,
safety
able
City
O'Hare v.
of De
troit,
19,
assume,
course,
362
Mich.
remedial statute. differing statutory provisions
Because of
authorities from
jurisdictions
Annot.,
particularly helpful,
other
are not
but see
"Duty
warning signs
authorities to erect and maintain
1000;
highway"
or devices for curves in
55 A.L.R.2d
and cf. Irvin
Padelford,
539;
135,
Cal.App.2d
v.
P.2d
Brown v. State
Commission, Kan.,
882;
Highway
Wagshal
444 P.2d
v. District
Columbia,
172;
Michaels,
D.C.App.,
216 A.2d
Resnik v.
107,
769;
Moline,
Ill.App.2d
City
201 N.E.2d
v.
of East
Johnston
401;
Mateo,
City
405 Ill.
91 N.E.2d
Dudum v.
of San
968;
Cal.App.2d
Rombalski,
334 P.2d
Firkus v.
25 Wis.2d
835;
Fiorito,
Lyle
v.
187 Wash.
HOMEYER, J., concurs in dissent.
STATE, HARVEY, Respondent Appellant v.
(167 161) N.W.2d (File 1969) Opinion April 22, 10608. No. filed