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Robertson v. City of Jones12/24/1991
the work is ordered and involves merely the execution of a set task, nothing remains for discretion. The duty of the municipality is then ministerial, that is to say operational, and requires the municipality to do the work with reasonable care and in a non-negligent manner.
Id. at 1017.
City was exercising its discretion by not placing a sign at the corner which Plaintiff failed to negotiate. Had City placed a sign at the corner and then the sign had been removed or damaged, replacing or repairing the sign would have been ministerial and failure to do so may have resulted in an effective tort action against City. However, because City never installed the sign in the first place, it is exempted from liability under section 155(15).
The grant of summary judgment is affirmed for City. A ninety-degree curve in a roadway, coupled with the failure to warn against the curve, cannot be considered a special defect necessitating a warning. Therefore, City cannot be subjected to liability.
RAPP, J., concurs.
BRIGHTMIRE, J., dissents.
BRIGHTMIRE, Judge, dissenting.
I dissent. The majority concludes that the "dispositive" factor is that the "City did not recognize the corner to be a special defect."
Since this is a review of a summary judgment, it is necessary to determine whether there are any material facts in dispute which can support a tort claim against the defendant city. In my opinion there are. The issue is whether, as a mixed matter of law and fact, the city had a duty to post a warning sign in advance of a sharp ninety-degree turn of a rural highway. The legal aspect of the issue involves a determination of whether the complained-of condition constitutes a hazard "normally connected with the use of roadways" - of which the city has no duty to initially warn - or whether it was a "special defect" imposing on the city a duty to warn. See 51 O.S.Supp. 1990 § 155 (15).
In my opinion, a sharp unmarked ninety-degree curve of an improved highway in an unlit fifty-five-mile-an-hour zone is not a hazard "normally connected with the use of roadways" and certainly not one a motorist would normally expect to encounter without warning. The question therefore becomes this: Whether such a condition constitutes a "special defect" within the meaning of § 155(15). The examples of unexpected special defects included in § 155(15) are "excavations or roadway obstructions." Another example is, of course, designing and building a rural highway which suddenly makes a sharp ninety-degree turn without any warning whatsoever. Such a condition is a prime example of a serious and dangerous "special defect."
Whether the condition complained of is a "special defect" is a matter of first impression in this state. Determination of the issue depends upon whether reasonable men viewing the material filed by the plaintiff in a light most favorable to the plaintiff, would differ as to whether the complained-of condition constitutes a special defect. While I believe it very likely they would not differ, it is conceivable they could and therefore the matter is one for jury resolution.
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