Kimminau v. City Of Hastings

864 N.W.2d 399 (2015)

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Nature of the Case

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Facts

State Trooper Dart observed wet corn mash spilling onto the roadway from a truck owned by R Lazy K(D) and operated by Todd (D). Dart closed the southbound lane of the roadway and requested assistance. Hastings Fire and Hastings Rural responded to the scene of the spill. They moved the spilled corn mash from the traveled portion of the roadway onto the unpaved shoulder and into the ditch, utilizing shovels, brooms, and firehoses. Neither Todd (D) nor R Lazy K (D) was requested to assist with the cleanup of the spill, and neither did so. These events were recorded by a front dash-mounted camera in Dart's patrol vehicle. Corn mash is visible on the shoulder of the roadway just past the white line at the edge of the southbound lane of the roadway after the cleanup was completed. When the cleanup was concluded, Dart issued a traffic citation to Todd (D), inspected the roadway, and then reopened it to vehicular traffic, because he thought it was safe to do so. Later that evening, the Adams County highway superintendent and a volunteer captain with Hastings Rural separately drove past the site of the corn mash spill and observed that the paved road surface was clear of any corn mash debris. On the following day, at approximately 1:20 p.m., P was driving southbound on South Showboat Boulevard. At the site of the corn mash spill, she lost control of her vehicle. The vehicle swerved on the roadway and eventually came to rest against a utility pole in the ditch. A photograph of the accident scene shows corn mash on the surface of the southbound lane of South Showboat Boulevard, north of where P's vehicle came to rest. A motorist who was traveling behind P prior to the accident saw her vehicle drop a tire off the roadway onto the unpaved shoulder and encounter corn mash immediately prior to its swerving. From the completion of the cleanup on November 15 until the report of P's accident the dispatch center received no calls or messages regarding any corn mash spills on South Showboat Boulevard. Hastings Rural was not notified of any other incidences of corn mash on the paved portion of the roadway following the cleanup on November 15 until it was informed of Kaelynn's accident at 1:29 p.m. on November 16. Ps sued Ds. Ps alleged that the three political subdivisions had actual or constructive notice of the corn mash spill and were negligent in (1) failing to take or to direct others to take corrective action and (2) failing to warn motorists of the danger posed by the spill. Ps alleged negligence against Todd (D) and R Lazy K (D) as well. The court determined as a matter of law that the political subdivisions were immune from suit under § 13-910(12), reasoning that 'the migration of the corn mash onto the roadway (after being cleaned up) was a 'spot or localized defect' as described in § 13-910' of which the political subdivisions did not have actual or constructive notice. The court reasoned that the actions of the firefighters and the state trooper in supervising, conducting the cleanup of the corn mash spill, and declaring the road safe for travel cut off any duty on the part of Todd (D) and R Lazy K (D) to remediate the spill. Ps appealed.