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201 6 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 DAKO TA, Defendant and Appellee , and DOUGLAS COUNTY, SOUTH D A K OTA , Defendant

. * * * * APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT AURORA COUNTY, SOUTH DAKOTA * * * * THE HONORABLE PATRICK T. SMITH Judge * * * * G EORGE F. JOHNSON STEPHANIE E. POCHOP of Johnson Pochop & Bar t ling Gregory , South Dakota Attorneys for plaintiff and appellant

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

. * * * * CONSIDERED ON BRIEFS ON NOVEMBER 30 , 2015 OPINION FILED 

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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 f act is in dispute whether the county owed the plaintiff a duty. We affirm. B ackground [¶ 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 acci dent 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 assert ed that it owed no duty to Foster

- Naser t o maintain the double

- arrow sign . It submitted that because 268th S treet 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# 27370

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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 tha t i t 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 Townsh ip 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 ty pe of road maintenance

. [¶ 5. ] Foster

- Naser disputed that the County merely agreed to plow snow and blade gravel. She direct ed 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, floo d work, shoulder work, disking , spo t gravel, blading, snow removal, and replacing a culvert

. The Sales History Report also documented that the Co unty 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 Coun ty employees] were maintaining it properly.” According to Foster

- Naser, the Sales History Report and Konechne ’s testimony created a fact# 27370

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- question whether the County as sumed responsibility for the Township’s statutory duty to maintain the sign on 268th Str eet. [¶ 6. ] After the hearing, the circuit court issued a memorandum decision and order. It noted that “without question” the Township wa s 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

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- 1 ,

- 26, and

- 7 gave the T ownship “explicit and implied authority to contract with other municipalities for road grading, snow removal, and any other maintenance that the
towns hip 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 assu med full control when it agree d 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 assu med a duty to repair or maintain the Township’s signage based on the fact the County sold the Township traffic signs

. And i t found unpersuasive Foster

- Naser’s argument that Konechne ’s use of the word “maintenance” during his deposition meant the County

as sumed full control over the Township’s duty to maintain 26 8 th Street. A ccording to the court, Foster

- Naser failed to present specific facts, testimony, contract# 27370

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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 road s . [¶ 8. ] The court granted Aurora County summary judgment. Foster

- Naser appeal s and we restate the issue as follows : Whether there is a genuine issue of material fact in dis pute that Aurora County had a du ty to maintain the traffic sign at the intersection of 392nd Avenue and 268th Street in Aurora Township, South Dakota

. A nalysis [¶ 9. ] For purposes of this ap peal, we assume the Township had a statutory duty to m aintain the double

- arrow sign on 268th Street. So t he only question is whether Aurora County assumed the Township’s duty when it agreed to maintain the Township’s roads. Foster

- N aser acknowledges that whether a duty exists is a question of law. Yet s he 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 absenc e 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 pe r forming 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 t he 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# 27370

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- question does not become one for a jury merely because the re 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 an d “[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. ] He re, the circuit court concluded that no duty existed between the County and Foster

- Naser because the evidence did not establish that Au rora County assumed full control over the Township’s statutory duty to maintain 268th Street. “On review, we apply the s ame 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. “ W e 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 sufficien t 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.# 27370

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

Naser , t here i s no evidence that the County orally a greed to assume full control over the Township’s road maintenance duties. More specifically, t here is no evidence that the County agreed to maintain, repair, or instal l the Township’s signage or the double

- arrow sign on 268th Street. The fact that the Co unty purchased traffic signs and sold those traffic signs to the Township is not probative evidence that the Township hired the County to maint ain those same (or any) signs. See Stern Oil Co. , Inc. v. Brown , 2012 S.D. 56, ¶ 8, 817 N.W.2d 395, 398 ( the par ty resisting summary judgment must present sufficient probative evidence in support of the claim ). A nd Konechne ’s testimony that he traveled 268th Street as part of the County’s duty to “ maintain ” the road does not establ ish that the County assumed full c ontrol 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 t o see if the signs have been d amaged or run over or any of that stuff. Is that one of your jobs as well? Konechne : I t 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 c heck 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 pr operly. Counsel : When you maintain a road, does that require you to do anything with the signs? Konechne : Nope. All we do is blade.# 27370

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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 i s supposed to take care of those signs? Konechne : No. Just verbally. They take c are 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 bladin g for as long as I can remember

. Counsel : But they didn ’ t h ire you to do anything with the signs or anything other than the b l ading. Konechne : Correct. Blad ing and snow removal.

. . . . Counsel : You said that your g uys that blade sometime s 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’l l

– 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

– i f 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.# 27370

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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 er r 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 Ki el v. DeSmet Townshi p , where we held that the duty under SDCL 31

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- 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, 15 5 (1976). Kiel , h owever, 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 Fost e r - Naser has not presented sufficient probative evidence that th e 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.