Argued September 1, 2015.
APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT HARDING COUNTY, SOUTH DAKOTA. THE HONORABLE JEROME A. ECKRICH, III.
ROBERT L. MORRIS, Belle Fourche, South Dakota, Attorney for plaintiff and appellant.
DONALD P. KNUDSEN, Gunderson, Palmer, Nelson & Ashmore, LLP, Rapid City, South Dakota, Attorneys for defendant and appellee.
SEVERSON, Justice. GILBERTSON, Chief Justice, and ZINTER, WILBUR, and KERN, Justices, concur.
[¶1] Ryan Stensland sued Harding County for negligence after he drove into a washed-out portion of a county road. A jury returned a general verdict for the County. Stensland appeals alleging that the court erred because it did not grant his motion for judgment as a matter of law that the County was negligent. He alleges the court further erred by allowing questions regarding assumption of the risk and contributory negligence to go to the jury. The County filed a notice of review alleging that the court erred by instructing the jury that the County had been negligent per se. We affirm.
[¶2] The driveway to Kevin Robinson's home is along County Road 734 (CR 734). On April 12, 2009, Robinson and his family were traveling east on CR 734. He testified at trial that the area had received snow and rain the week before. As he drove over a section of the road with a culvert in it, he noticed a small hole in the road and water in the ditches. He stopped
to investigate. He testified that he stomped on the road and half of it fell in, exposing the culvert underneath. His wife called highway superintendent Brad Bowers to report the road condition.
[¶3] At trial, Brad Bowers testified that the County subsequently placed signs on the road that warned of the washout. It placed a " Road Closed" sign mounted on a type I barricade near the Robinson's driveway. At some time, an unknown individual moved the sign further west to the intersection of CR 734 and a road known as Carlson Road. The County also placed type I barricades flanked by orange cones on both sides of the washout, roughly 20 to 30 feet from the edges. An unknown individual placed a delineator post in the middle of the washout. Multiple people testified that these delineator posts usually mark the edge of the road where culverts end.
[¶4] The County's signs undisputedly did not comply with the Manual on Uniform Traffic Control Devices (MUTCD). Instead of the signs in place, the MUTCD would require a type III barricade in this scenario. The type I barricade used by the County was shorter and narrower than a type III barricade. A type I barricade has just one horizontal board with reflective tape on it rather than three boards. The manual also required a sign that said " Road ...