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ESTATE OF OSWALD v. DUBUQUE COUNTY11/29/1993
g the following questions: (1) whether or not the "Road Closed" sign was present at the scene at the time of the accident; and (2) whether the "Road Closed" sign, if present at the scene at the time of the accident, was misleading. A fact issue question has been generated with regard to both of these questions about which reasonable minds could differ.
The district court went on to conclude that the defendant was entitled to summary judgment as a matter of law regardless of the answers to these factual disputes, citing Iowa Code section 668.10(1) and Foster v. City of Council Bluffs, 456 N.W.2d 1 (Iowa 1990). The district court's conclusion of law in this regard is without merit. Iowa Code section 668.10(1) states:
In any action brought pursuant to this chapter, the state or a municipality shall not be assigned a percentage of fault for any of the following:
1. The failure to place, erect, or install a stop sign, traffic control device, or other regulatory sign as defined in the uniform manual for traffic control devices adopted pursuant to section 321.252. However, once a regulatory device has been placed, created or installed, the state or municipality may be assigned a percentage of fault for its failure to maintain the device.
(Emphasis added.)
In Foster the supreme court considered the following certified question of law, posed by the United States District Court for the Southern District of Iowa pursuant to Iowa Code chapter 684A (1989):
Does the immunity granted by section 668.10(1) apply when the municipality has created a dangerous condition in the traveled portion of a roadway while engaged in its construction or repair?
Foster, 456 N.W.2d at 2.
After answering this certified question of law in the affirmative, the supreme court stated:
The next logical questions are whether and to what extent section 668.10(1) immunizes the city of Council Bluffs from liability under the circumstances of this case. There are duties other than the duty to warn which the city may have breached. See, e.g. . . . Iowa Code section 668.10(1) (duty to maintain a device)[.]
. . . However, these questions are not posed by the order of certification, and we express no opinion as to these matters.
(Emphasis added.) Id. at 2-3. As the emphasized portions of the above excerpt indicate, the supreme court specifically declined to address the very question which arises in the present case. Accordingly, we cannot say the plaintiffs' estates are precluded as a matter of law from asserting that Dubuque County is liable for injuries and deaths suffered as a result of the county's failure to maintain safety barricades and warning signs after installing such devices.
The Foster court itself recognized:
t may be anomalous to insulate a municipality from liability for not posting an adequate warning sign at a known place of danger while permitting fault to be assigned to it for failing to maintain an already-posted sign where there may be little risk to motorists. See Metier v. Cooper Transp. Co., 378 N.W.2d 907, 913 (Iowa 1985). However, the statute represents a legislative policy decision over which we have no control under our system of separation of powers.
Id., 456 N.W.2d at 2.
In addition, it should be noted that the plaintiffs' estates assert three other theories of recovery besides failure to maintain safety barricades and warning signs after installing such devices. These other theories include: (1) use of a dangerously misleading sign; (2) failure to provide human supervision of the dangerous condition created where ordinary car
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