#27370-a-LSW

2016 S.D. 6

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA
                                      ****
LYNN FOSTER-NASER, Individually
and as Special Administrator of the
Estate of TRAVIS J. NASER,                   Plaintiff and Appellant,

      v.

AURORA COUNTY, SOUTH DAKOTA,                 Defendant and Appellee,

      and

DOUGLAS COUNTY, SOUTH DAKOTA,                Defendant.

                                      ****

                  APPEAL FROM THE CIRCUIT COURT OF
                      THE FIRST JUDICIAL CIRCUIT
                    AURORA COUNTY, SOUTH DAKOTA

                                      ****
                    THE HONORABLE PATRICK T. SMITH
                                Judge

                                      ****

GEORGE F. JOHNSON
STEPHANIE E. POCHOP of
Johnson Pochop & Bartling
Gregory, South Dakota                        Attorneys for plaintiff
                                             and appellant.

DOUGLAS M. DEIBERT of
Cadwell, Sanford, Deibert & Garry, LLP
Sioux Falls, South Dakota                    Attorneys for defendant
                                             and appellee.

                                      ****

                                             CONSIDERED ON BRIEFS
                                             ON NOVEMBER 30, 2015
                                             OPINION FILED 01/27/16
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WILBUR, Justice

[¶1.]        In this negligence case, the circuit court granted the county summary

judgment. It found that no duty existed between the county and the plaintiff as a

matter of law. The plaintiff appeals asserting a material issue of fact is in dispute

whether the county owed the plaintiff a duty. We affirm.

                                    Background

[¶2.]        On September 30, 2010, Travis Naser died in a one-vehicle accident

while he was the passenger in a vehicle being driven by Lowell Langstraat. The

accident occurred after Langstraat drove off the road because he failed to negotiate

a “T” intersection at a dead-end road. The dead-end intersects two gravel roads in

rural South Dakota. The north-south road, 392nd Avenue, is located in Douglas

County. The east-west road, 268th Street, is located in Aurora County. After the

accident, Travis’s wife, Lynn Foster-Naser, brought suit against Aurora and

Douglas counties for wrongful death. This appeal concerns only her suit against

Aurora County. Foster-Naser alleged that Aurora County negligently failed to

maintain the double-arrow sign on 268th Street. She claimed that had the sign

been properly maintained it would have warned Langstraat that the dead-end

intersection required a sharp right or left turn.

[¶3.]        Aurora County moved for summary judgment and asserted that it

owed no duty to Foster-Naser to maintain the double-arrow sign. It submitted that

because 268th Street is a township road, Aurora Township had the duty to maintain

the street. Foster-Naser did not dispute that Aurora Township is the governing

body responsible for 268th Street. Instead, it responded that an oral agreement


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existed between the County and the Township whereby the County agreed to

maintain the Township’s roads. This oral agreement, Foster-Naser averred, created

a duty on the part of the County to maintain the double-arrow sign on 268th Street.

[¶4.]        The circuit court held a hearing on the County’s motion for summary

judgment. The County conceded that it had entered into an oral agreement with

the Township to maintain the Township’s roads. The County explained that the

agreement had existed for “as long as” Highway Superintendent Roger Konechne

could remember. But the County insisted that the Township never hired the

County to install, maintain, or repair signage on the Township’s roads. The

Township only hired the County to blade gravel and plow snow on the Township’s

roads because the Township did not have the heavy equipment necessary for that

type of road maintenance.

[¶5.]        Foster-Naser disputed that the County merely agreed to plow snow

and blade gravel. She directed the circuit court to the County’s “Sales History

Report” and to Highway Superintendent Konechne’s deposition testimony. In the

Sales History Report, the County billed the Township for time spent on rock work,

back sloping, flood work, shoulder work, disking, spot gravel, blading, snow

removal, and replacing a culvert. The Sales History Report also documented that

the County sold certain traffic signs to the Township. Konechne testified that he

traveled 268th Street as part of the County’s duty to maintain the road.

Specifically, he remarked that he traveled 268th Street because he “just wanted to

make sure we [the County employees] were maintaining it properly.” According to

Foster-Naser, the Sales History Report and Konechne’s testimony created a fact


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question whether the County assumed responsibility for the Township’s statutory

duty to maintain the sign on 268th Street.

[¶6.]        After the hearing, the circuit court issued a memorandum decision and

order. It noted that “without question” the Township was responsible for 268th

Street and had a statutory duty under SDCL 31-13-1 and -26 to “repair or maintain

proper roadway markings or signage.” The court further held that SDCL 31-13-1,

-26, and -7 gave the Township “explicit and implied authority to contract with other

municipalities for road grading, snow removal, and any other maintenance that the

township so chooses.” Yet, in the court’s view, the County would not “be liable

under the same negligence theory as the original municipality” unless the County

assumed “full control under the contract.” See generally Robinson v. Minnehaha

Cty., 65 S.D. 628, 277 N.W. 324 (1938). If the County did not assume full control,

the court interpreted the law to mean that the County would only be “liable for the

duties it specifically contracted to do.” See id. at 328.

[¶7.]        The court then examined whether the County assumed full control

when it agreed to maintain the Township’s roads. The court noted that the County

presented evidence that it only agreed to blade gravel and plow snow for the

Township. It rejected Foster-Naser’s claim that the County assumed a duty to

repair or maintain the Township’s signage based on the fact the County sold the

Township traffic signs. And it found unpersuasive Foster-Naser’s argument that

Konechne’s use of the word “maintenance” during his deposition meant the County

assumed full control over the Township’s duty to maintain 268th Street. According

to the court, Foster-Naser failed to present specific facts, testimony, contract


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evidence, or written documentation that “impliedly” or “purportedly” showed that

Aurora County exhibited full control over the Township’s duty to maintain its roads.

[¶8.]        The court granted Aurora County summary judgment. Foster-Naser

appeals and we restate the issue as follows:

             Whether there is a genuine issue of material fact in dispute that
             Aurora County had a duty to maintain the traffic sign at the
             intersection of 392nd Avenue and 268th Street in Aurora
             Township, South Dakota.

                                      Analysis

[¶9.]        For purposes of this appeal, we assume the Township had a statutory

duty to maintain the double-arrow sign on 268th Street. So the only question is

whether Aurora County assumed the Township’s duty when it agreed to maintain

the Township’s roads. Foster-Naser acknowledges that whether a duty exists is a

question of law. Yet she claims that under the circumstances of this case a jury

must decide whether the County’s oral agreement to provide road maintenance

included an agreement to maintain the double-arrow sign on 268th Street. She

contends, “[T]he reality is that in the absence of a written agreement, or an actual

party to the original oral agreement, no one can prove exactly what the terms of the

agreement were, and we must rely on testimony, photographs and sales histories to

prove what duties the County had assumed from and was performing for the

Township.” She then avers that Konechne’s deposition testimony and the County’s

Sales History Report create a material issue of fact in dispute as to the terms of the

parties’ agreement.

[¶10.]       Whether a duty exists and the scope of that duty is for the court to

determine. Hamilton v. Sommers, 2014 S.D. 76, ¶ 22, 855 N.W.2d 855, 862. The

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question does not become one for a jury merely because there is an oral agreement

between the parties created long ago. Nor does duty become a fact question because

Foster-Naser believes a jury could infer from Konechne’s deposition testimony and

the Sales History Report that the County agreed to do more than blade gravel and

plow snow on the Township roads. Duty is a question of law and “[s]ummary

judgment is proper in negligence cases if no duty exists[.]” Millea v. Erickson, 2014

S.D. 34, ¶ 9, 849 N.W.2d 272, 275 (quoting First Am. Bank & Tr., N.A. v. Farmers

State Bank, 2008 S.D. 83, ¶ 13, 756 N.W.2d 19, 25-26).

[¶11.]       Here, the circuit court concluded that no duty existed between the

County and Foster-Naser because the evidence did not establish that Aurora

County assumed full control over the Township’s statutory duty to maintain 268th

Street. “On review, we apply the same test as the trial court: we probe the record

for material facts, resolve disputed facts in favor of the nonmoving party, and decide

whether the moving party is entitled to a judgment as a matter of law.” Fisher v.

Kahler, 2002 S.D. 30, ¶ 5, 641 N.W.2d 122, 125. “We require ‘those resisting

summary judgment to show that they will be able to place sufficient evidence in the

record at trial to support findings on all the elements on which they have the

burden of proof.’” Bordeaux v. Shannon Cty. Schs., 2005 S.D. 117, ¶ 14, 707 N.W.2d

123, 127 (quoting Chem-Age Indus., Inc. v. Glover, 2002 S.D. 122, ¶ 18, 652 N.W.2d

756, 765). General allegations without specific supporting facts are insufficient. Id.

And “proof of a mere possibility is never sufficient to establish a fact.” Estate of

Elliot v. A & B Welding Supply Co., Inc., 1999 S.D. 57, ¶ 16, 594 N.W.2d 707, 710.




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[¶12.]       From our review of the record in a light most favorable to Foster-

Naser, there is no evidence that the County orally agreed to assume full control over

the Township’s road maintenance duties. More specifically, there is no evidence

that the County agreed to maintain, repair, or install the Township’s signage or the

double-arrow sign on 268th Street. The fact that the County purchased traffic signs

and sold those traffic signs to the Township is not probative evidence that the

Township hired the County to maintain those same (or any) signs. See Stern Oil

Co., Inc. v. Brown, 2012 S.D. 56, ¶ 8, 817 N.W.2d 395, 398 (the party resisting

summary judgment must present sufficient probative evidence in support of the

claim). And Konechne’s testimony that he traveled 268th Street as part of the

County’s duty to “maintain” the road does not establish that the County assumed

full control of the Township’s statutory duty to maintain and repair roadway

signage. Konechne testified as follows:

             Counsel: The last witness was telling me that the Highway
             superintendent in Douglas County, as one of his jobs, is to drive
             around and check to see if the signs have been damaged or run
             over or any of that stuff. Is that one of your jobs as well?
             Konechne: It is on County roads.
             Counsel: Okay. And you’re saying that 268th in Aurora
             County at the County line is not – not one of your jobs to check
             that one or do anything on that one.
             Konechne: Correct. That is a township road.
             Counsel: So you – why were you driving down it to check the
             road conditions?
             Konechne: We maintain that road, and I just wanted to make
             sure we were maintaining it properly.
             Counsel: When you maintain a road, does that require you to
             do anything with the signs?
             Konechne: Nope. All we do is blade.


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         Counsel: Did you have some kind of agreement with the
         township or is there some paperwork that shows that the
         township is supposed to take care of those signs?
         Konechne: No. Just verbally. They take care of their roads,
         and we take care of County roads.
         ....
         Counsel: . . . okay, how long had the County been handling the
         blading on that road, 268th?
         Konechne: As long as I can remember. You know, it was –
         we’ve been doing – the township hires us to do the blading for as
         long as I can remember.
         Counsel: But they didn’t hire you to do anything with the signs
         or anything other than the blading.
         Konechne: Correct. Blading and snow removal.
         ....
         Counsel: You said that your guys that blade sometimes notice
         that signs have been damaged or knocked down.
         Konechne: Yes.
         Counsel: And then they call you and let you know.
         Konechne: Yep.
         Counsel: And do they do that even when they’re blading a
         township road.
         Konechne: Yeah.
         Counsel: Okay. And then – so what do you do about that when
         it’s a township road that’s got a problem?
         Konechne: I’ll – I’ll call a township board member and notify
         them so they can go take care of it.
         Counsel: And do any of the townships hire you – if they hire
         you to do some of their blading, do they hire you to go do those
         repairs?
         Konechne: No.
         Counsel: For your group?
         Konechne: No.
         Counsel: Okay, they go out and do it themselves.
         Konechne: I would assume so.




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Without sufficient probative evidence that the County assumed the Township’s duty

to maintain its roads, the circuit court did not err when it granted Aurora County

summary judgment.

[¶13.]       The circuit court also did not err when it rejected Foster-Naser’s claim

that the County’s oral agreement to provide “road maintenance” includes, as a

matter of law, “the maintenance of existing signs and other items appurtenant to

roadways.” Foster-Naser relies on Kiel v. DeSmet Township, where we held that the

duty under SDCL 31-32-10 to repair a county highway includes a “duty to maintain

and keep” an erected warning “sign in reasonable repair for the safety of public

travel.” See 90 S.D. 492, 497, 242 N.W.2d 153, 155 (1976). Kiel, however,

implicated our statutory interpretation of a governing body’s duty to maintain a

road. This case concerns the County’s contractual agreement to maintain the

Township’s roads, and Foster-Naser has not presented sufficient probative evidence

that the County’s contractual agreement to provide road maintenance included an

agreement to maintain the Township’s signage.

[¶14.]       Affirmed.

[¶15.]       GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and KERN,

Justices, concur.




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