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Zaske v. Lee

October 01, 2002

JAMES HARVEY ZASKE, A MINOR BY CATHY BRATSCH, HIS MOTHER AND NATURAL GUARDIAN AND CATHY BRATSCH, RESPONDENTS,
v.
RICHARD DAVID LEE, RESPONDENT, ROBERT THOMAS HURO, RESPONDENT, COUNTY OF KANABEC, STATE OF MINNESOTA, APPELLANT, INTEGRITY MUTUAL INSURANCE COMPANY, RESPONDENT, AND WESTERN NATIONAL MUTUAL INSURANCE COMPANY, RESPONDENT.



Kanabec County District Court File No. C2-00-000591

Considered and decided by Willis, Presiding Judge, Stoneburner, Judge, and Kalitowski, Judge.*fn1

SYLLABUS BY THE COURT

When a party asserts a governmental entity's liability on the grounds of constructive notice and imputation of such notice results in a direct challenge to the entity's discretionary conduct, the party's claim is barred by statutory discretionary immunity.

The opinion of the court was delivered by: Stoneburner, Judge

Reversed

OPINION

Appellant county challenges the district court's denial of its motion for summary judgment in which the county argued that statutory and vicarious official immunity protect it from liability for an accident allegedly caused by its failure to replace a stop sign that was knocked down four days before the accident. Because the evidence does not present a genuine issue of material fact about whether appellant had actual notice of the missing sign and because constructive notice constitutes a challenge to the county's discretionary conduct, we reverse.

FACTS

On Thanksgiving Day, November 25, 1999, an unidentified driver hit the stop sign that controlled westbound traffic on Kanabec County Road 18, where it intersected with Kanabec County Road 11. The driver used a hacksaw to cut the signpost at its base to free his vehicle, which had gotten hung up on the sign. The driver laid the sign in the grassy ditch where it was not visible to motorists. Although several people stopped to help the driver free his vehicle from the signpost, no one reported the damage to the stop sign to appellant Kanabec County.

Respondent James H. Zaske, a minor and passenger in respondent Richard D. Lee's vehicle, was injured in an early-morning collision at the intersection of County Roads 18 and 11, on Monday, November 29, 1999. The county, which had not detected the missing stop sign until this second accident occurred, replaced the stop sign immediately after this accident. Respondent Zaske sued the county for its alleged negligence in failing to detect and replace the missing stop sign.

The county encompasses more than 524 square miles and has more than 845 miles of state, county, and township roads. The county is responsible for the installation, maintenance, and repair of approximately 3,500 road signs throughout the county. There is an unwritten but acknowledged policy and practice for reporting and repairing defective or dangerous road conditions, including damaged traffic-control devices, that requires all county highway department employees and sheriff's deputies to look for and immediately report any dangerous or defective road conditions. All department vehicles have radio equipment that can be used to report such conditions, and the sheriff's dispatcher notifies the highway department of any reports it receives. If the department is closed at the time of the report, the county engineer or maintenance foreperson is immediately notified and steps are taken to correct the condition. The policy and procedures have been approved by the county engineer, based on safety, personnel, and budget considerations and, according to the engineer, are consistent with most other Minnesota counties' policies.

It is undisputed that there is no evidence that the county had actual knowledge that the sign was missing before the November 29 accident occurred. Because of the Thanksgiving holiday, sheriff's deputies and dispatch personnel were the only county employees on duty during the period between when the stop sign was cut down and when the November 29 accident occurred. A maximum of two deputies were on duty during each work shift over this period. All other county offices were closed. The highway department's maintenance foreperson did not receive a report that the sign was knocked down until after the accident occurred on November 29. The sheriff's department documents all the reports it receives with respect to traffic-control devices, and the chief deputy's affidavit states that he reviewed the documents and the department did not receive a report concerning the sign. The chief deputy also reviewed the department's radio logs and incident reports, and the patrol logs maintained by the deputies on duty, and none of these indicates that any deputy traveled through the intersection between November 25 and November 29, 1999. Also, the six deputies who worked during this period submitted affidavits. Two are certain they did not travel through this intersection at all during this period. Four do not believe they traveled through the intersection at all during this period and are certain that they did not travel westbound on County Road 18 through the intersection during this period.

The county moved for summary judgment, arguing that it cannot be liable for a dangerous or defective condition of which it had no notice and that, to the extent the claims against the county challenge the policy and procedures for identifying, reporting, and repairing downed signs or other road hazards, the claims are barred by statutory and vicarious official immunity. The district court denied the county's motion for summary judgment, stating only that it found that "there are genuine issues of material facts with regards to Kanabec County * * * ." The parties agree that constructive notice is the only possible question of fact. The county argues that submitting the issue of constructive notice to a jury under the facts of this ...


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