Anoka County District Court File No. C3-01-4070
Considered and decided by Kalitowski, Presiding Judge; Shumaker, Judge;
and Crippen, Judge.*fn1
1. Whether a county is entitled to statutory immunity is a separate inquiry from whether a county breached a duty, statutory or otherwise, or was negligent.
2. Where a county does not have actual notice of an allegedly dangerous condition, the county is entitled to statutory immunity on a failure-to-warn claim if the county's inspection and maintenance policy balances competing political, social, and economic factors.
The opinion of the court was delivered by: Kalitowski, Judge
Appellant Jerald Minder brought this action against respondent Anoka County, alleging that the county's failure to maintain its roads, place warnings signs, and exercise reasonable care in identifying and correcting a pothole in the roadway, caused his motorcycle accident. He challenges the district court's grant of the county's motion for summary judgment, arguing that the county is not entitled to statutory immunity and that a genuine issue of material fact exists as to whether an inherent danger existed and whether the county had notice of that danger.
Appellant suffered serious injuries after he lost control of his motorcycle on Anoka County Road 1/East River Road. Appellant contends that a pothole on the road caused his accident, which we assume to be true for purposes of this appeal. Appellant retained an accident reconstructionist who opined that: (1) a pothole caused appellant's accident; (2) the pavement of County Road 1 had exceeded its useful life; and (3) as evidenced by the county's numerous repair and maintenance records of the area, the county had notice that the road was hazardous and in constant disrepair.
Appellant sued the county, alleging that the county (1) failed to maintain the roadway and repair the pothole that caused appellant to lose control of his motorcycle; (2) failed to warn users of the roadway that the road was rough and in disrepair; and (3) failed to exercise reasonable care in identifying and correcting the pothole. The county moved for summary judgment, arguing that official and statutory immunity barred appellant's claims, or alternatively, that appellant had failed to establish causation and the county's notice of a dangerous condition. The district court granted summary judgment in favor of the county, finding that appellant's claims were barred by discretionary immunity, or alternatively, appellant had failed to establish that the pothole was an inherently dangerous condition or that the county had actual notice of it.
The relevant segment of County Road 1 was reconstructed and paved in 1971. Douglas Fischer, the county engineer in charge of the county's highway department, explained that the county uses a rating system to measure the overall suitability of a road segment called an overall condition index (OCI). The county uses the evaluation system to determine the allocation of resources for highway repair and reconstruction. In rating a road's suitability, the county considers several factors including distress, geometrics, ride, safety/accident rate, service, and structure. The scale runs from 1 (worst) to 100 (best). In December 1999, the relevant segment of County Road 1 received a 64.30 rating, which, according to the county, indicates that the road is adequately functioning to carry the daily traffic safely. The accident rate for this segment of County Road 1 was.80 per million vehicle miles, which resulted in a safety rating of 94.00 (out of 100), and the accident rate for the entire road was 1.86 per million vehicle miles, which resulted in a safety rating of 73.00. In his affidavit, dated August 16, 2002, Fischer stated that the county highway department intended to resurface the relevant segment of County Road 1 in 2003, but budget cuts proposed by the county board could delay the project.
Jon Olson, the county's former highway engineer and current manager of the public services division, explained that in determining what roads to repair, the county rates the roads by considering "whether the road has slipping, rutting, alligatoring, longitudinal cracking, transverse cracking, and drainage problems." The highway department then submits the list to the public works committee, a subcommittee of the county's board of commissioners, which oversees the highway department. The committee then determines what roads will be reconditioned or overlayed that year, considering the volume of traffic expected on the roads, the number of complaints about the road, input from local municipalities, and the knowledge of upcoming total reconstruction of the road. All these factors are balanced against the amount of money available for this reconditioning or overlay, and a judgment is made about a plan for the coming year.
According to Olson, the highway department also performs road patching by "spot patching" or "crew patching." Spot patching occurs when highway department crews respond to specific complaints about a road surface or travel county roads and repair areas of road surface that need attention. Crew patching involves more workers and is designed to patch all holes and cracks over a specified length of road. Before assigning patching crews, several factors are considered, including weather conditions, time of year, road location, volume of traffic on the road, the existence and number of citizen complaints, cost of repair materials based on the ...