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Ousley v. Board of Commissioners of Fulton County8/31/2000
FOR PUBLICATION
OPINION - FOR PUBLICATION
Appellants, Melissa Ousley, as administratrix of her husband, Dan Ousley's estate, and in her own behalf and as next friend to their children, Amanda Ousley and Ashley Ousley, (Ousley) appeals the trial court's grant of summary judgment in favor of the Board of Commissioners of Fulton County (Fulton County) and Donald Craig (Craig).
We reverse and remand.
This case arose as a result of an automobile accident which claimed the life of Ousley's husband, Dan. On October 7, 1994, Dan was driving his automobile east on Fulton County Road 500 North when George Wagner (Wagner), who was driving his truck south on Fulton County Road 825 East, struck Dan's automobile at the intersection of the two roads. Wagner did not yield to Dan's automobile at the stop sign located at the intersection of 825 East and 500 North. When Wagner's truck struck Dan's automobile, the truck pushed the automobile into a steel railroad post serving as a corner fencepost, located six and one-half feet from the edge of 500 North. Dan died as a result of his injuries in the accident, and Amanda and Ashley, who were passengers, also sustained injuries.
On October 7, 1996, Ousley filed a complaint alleging wrongful death against Fulton County and Craig, the landowner whose property was adjacent to the intersection and whose fencepost was struck. In the complaint, Ousley alleged that the corner fencepost was erected within the right-of-way of 500 North, and that Fulton County had a duty to maintain the highways and remove any obstructions including this post. Further, Ousley contended that Craig had a duty to remove the dangerous condition posed by the fencepost to travelers along the adjacent roads.
On December 11, 1998, Fulton County filed a Motion for Summary Judgment. Fulton County asserted that the fencepost was not located within the right-of-way, and therefore, it had no duty to remove the fencepost or warn motorists about it. Specifically, Fulton County disputed the accuracy of an Indiana Department of Transportation (INDOT) measurement of 500 North placing the fencepost within the right-of-way. The county insisted that this measurement was only an estimate, and instead relied upon the statutory provisions for right-of-way widths and upon case law which would place the fencepost on Craig's property.
On December 23, 1998, Craig also moved for summary judgment. Craig contended that landowners should not owe a duty to motorists when motorists leave the paved portion of a clear and straight intersection where there is no history of other accidents. Craig also asserted that he had no duty to motorists to construct the fencepost in a different manner. Craig contended the fencepost was constructed of materials similar to those used by other farmers in the area.
On August 18, 1999, after a hearing, the trial court entered summary judgment for Fulton County and Craig. The trial court concluded that the intersection of 500 North and 825 East has remained essentially unchanged for at least forty years and probably since the turn of the century. The court assumed for purposes of Fulton County's summary judgment motion that the fencepost was within the right-of-way, but nevertheless concluded that the county did not owe a duty to remove "bordering items" such as trees or fenceposts "where the right-of-way is visibly bordered and nothing hazardous about that border is apparent." Record at 161.
The trial court then assumed for purposes of Craig's summary judgment motion that the fencepost was upon Craig's property and not within the right of way. The court noted that the intersection had a low amoun
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