Distinguished
Distinguished by Munson v. Missouri-Pacific Railroad, 69 O.B.A.J. 2559 (1998)
¶ 8 Robertson is distinguishable on its facts because the defendant municipality in that case never erected signs to warn about the sharp curve.
The opinion
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.