#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 FosterNaser, 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.