text:
    2002 ND 102
    STATE of North Dakota, Plaintiff and Appellee, v. John Lee STEWART, Defendant and Appellant.
    Nos. 20010283, 20010284.
    Supreme Court of North Dakota.
    July 11, 2002.

      William Robert Hartl, Rugby, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] John Lee Stewart appealed from two criminal judgments entered on jury verdicts finding him guilty of driving under the influence of liquor or drugs and aggravated reckless driving. We conclude evidence of Stewart’s prior felony convictions was admissible and there was sufficient evidence Stewart was under the influence of alcohol while driving a vehicle. We affirm.

I

[¶ 2] Stewart rolled his car north of Bottineau on October 10, 2000. Mike Kro-gen and Stewart’s brother, Mitch Lafram-boise, were passengers in the car. When a deputy sheriff and medical personnel arrived at the accident scene, Krogen was unconscious. Krogen later died from injuries received in the accident. Neither Stewart nor Laframboise would indicate who was driving the vehicle and investigators were unable to learn who the driver was until a few days later. After a jury trial, Stewart was convicted of driving under the influence of liquor or drugs and aggravated reckless driving. Stewart appealed the criminal judgments.

II

[¶ 3] Stewart contends the trial court abused its discretion in admitting three felony convictions into evidence. Stewart testified in his defense. On direct examination, he testified he had one alcoholic drink, a “Jim Beam and coke,” on October 10, 2000, with dinner, “about 7:00, 7:30,” and that he made the drink, which contained “about the same as one or two shots” of alcohol.

[¶4] Stewart testified on cross-examination: (1) he could not “remember everything up to the point of having the accident”; (2) “I remember parts of it. I guess I don’t remember the time of the accident. But there’s parts I don’t remember, you know, after the accident or before the accident too”; (3) the only drink he remembered was the one with dinner; (4) he did not remember talking to his father after the accident, did not “remember talking to the police at all”; and did not remember talking to his brother or to Emergency Medical Technician Bierman at the accident scene; and (5) when asked, “What do you remember in the hospital” Stewart replied, “I remember they wouldn’t leave me alone.”

[¶ 5] The prosecutor offered three exhibits showing prior felony convictions of Stewart: (1) a December 30, 1991, judgment and order deferring imposition of sentence on a plea of guilty to unauthorized use of a vehicle, a class C felony; (2) a September 30, 1992, criminal judgment and commitment entered upon a plea of guilty to unlawful possession of a firearm, a class C felony; and (3) a March 29, 1996, criminal judgment and commitment upon a plea to reckless endangerment, a class C felony. The exhibits showed the sentences Stewart received, but did not disclose the underlying facts of the offenses.

[¶ 6] Rule 609, N.D.R.Ev., which was taken from the Uniform Rules of Evidence (1974), provides, in part:

(a) General Rule. For the purpose of attacking the credibility of a witness, (i) evidence that a witness other than an accused has been convicted of a crime must be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime must be admitted if the court determines that the probative value of admitting that evidence outweighs its prejudicial effect to the accused; and (ii) evidence that any witness has been convicted of a crime must be admitted if it involved dishonesty or false statement, regardless of the punishment.
(b) Time Limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of conviction or of the release of the witness from any confinement imposed for that conviction, whichever is the later date unless the witness is still in confinement for that conviction.

Under N.D.C.C. § 12.1-32-01, felonies are offenses punishable by a maximum imprisonment in excess of one year. Thus, under N.D.R.Ev. 609(a)(i), for the purpose of attacking the credibility of a testifying accused, evidence that the accused has been convicted of a felony that meets the time limit of subdivision (b) “must be admitted if the court determines that the probative value of admitting that evidence outweighs its prejudicial effect.” It has not been argued Stewart’s convictions involved dishonesty or false statement under N.D.R.Ev. 609(a)(ii).

[¶ 7] “[IJnherent in Rule 609(a) is an acknowledgment that prior convictions are probative of a witness’s credibility.” State v. Randall, 2002 ND 16, ¶ 6, 639 N.W.2d 439; see also State v. Lloyd, 345 N.W.2d 240, 247 (Minn.1984) (“Underlying Rule 609 is the principle that impeachment by a prior conviction assists the jury to judge better the credibility of a witness by affording it the opportunity to view that person as a whole.”). However, when dealing with the impeachment of a testifying defendant, the mere fact a prior conviction may have probative value does not automatically permit its use to impeach the defendant. When applied to the accused, Rule 609(a)® imposes a requirement that the evidence be admitted only if its probative value outweighs its prejudicial effect. As we have noted, Rule 609(a)(1) includes a special balancing test that “only applies to a criminal defendant because a criminal defendant faces the unique risk that juries will use prior convictions as evidence of the defendant’s propensity to commit crime, rather than considering the convictions for impeachment purposes.” Randall, 2002 ND 16, ¶ 13, 639 N.W.2d 439.

[¶ 8] One of the factors to be considered in applying this special balancing test is the similarity between the prior crime and the charged crime. State v. Murchison, 541 N.W.2d 435, 442 (N.D.1995). We have previously explained that, when dealing with the impeachment of defendants, trial courts must be particularly careful about admitting prior convictions that are similar to the offense charged because of the potential prejudice that may result. See State v. Eugene, 536 N.W.2d 692, 695 (N.D.1995). Prior convictions similar to the charged crime should be admitted sparingly, while dissimilarity favors admission. 4 J. McLaughlin, Weinstein’s Federal Evidence § 609.05[3][d] (2d ed.2002). If the prior conviction is similar to the crime charged, there is a heightened danger the jury will use the evidence not only for impeachment purposes, but also as evidence of the defendant’s propensity to commit crime. Eugene, at 696. The Fourth Circuit explained the danger facing the accused:

Admission of evidence of a similar offense often does little to impeach the credibility of a testifying defendant while undoubtedly prejudicing him. The jury, despite limiting instructions, can hardly avoid drawing the inference that the past conviction suggests some probability that defendant committed the similar offense for which he is currently charged. The generally accepted view, therefore, is that evidence of similar offenses for impeachment purposes under Rule 609 should be admitted sparingly if at all.

United States v. Sanders, 964 F.2d 295, 297-98 (4th Cir.1992) (quoting United States v. Beahm, 664 F.2d 414, 418-19 (4th Cir.1981)).

[¶ 9] “[A]ppellate courts are reluctant to reverse a determination of admissibility” and “generally affirm the trial court’s determination as long as there is some indication that the trial court exercised its discretion by weighing the probative value of the prior conviction against its prejudicial effect.” 4 J. McLaughlin, Weinstein’s Federal Evidence, at § 609.23. Among the factors for a trial court to consider in weighing the probative value of a prior felony conviction and its prejudicial effect are impeachment value of the prior crime, the time of the conviction and the witness’s subsequent history, similarity between the prior crime and the charged crime, importance of the defendant’s testimony, and the centrality of the credibility issue. State v. Murchison, 541 N.W.2d 435, 442 (N.D.1995). The factors were drawn from United States v. Mahone, 537 F.2d 922, 929 (7th Cir.1976). State v. Fuller, 379 N.W.2d 289, 290 (N.D.1985). “We review a trial court’s ruling under N.D.R.Ev. 609 under the abuse of discretion standard.” Randall, 2002 ND 16, ¶ 5, 639 N.W.2d 439. “A trial court abuses its discretion if the record does not ‘show that the trial court meaningfully or appropriately considered the relevant factors’ when it weighed the prior conviction’s probative value and prejudicial effect.” Murchison, at 442. “Although we prefer the trial court to articulate expressly how it balanced the relevant factors, it is often enough for the court to hold a brief hearing and to make an explicit finding on the record that demonstrates the trial court did not just apply NDREv 609(a)(i) mechanically.” Id.

[¶ 10] In assessing probative value under Murchison there are several practical considerations a trial court might take into account. “Although Rule 609(a)(1) addresses convictions for crimes that do not involve dishonesty or false statement, some felonies are more related to veracity than are others.... Thus, crimes of violence generally have limited probative value concerning the witness’s credibility.” 4 J. McLaughlin, Weinstein’s Federal Evidence, at § 609.05[3][b]. “The probative value of a conviction decreases as its age increases.” Id. at 609.05[3][c]. “When the defendant’s credibility is a central issue, this weighs in favor of admitting a prior conviction.” Id. at 609.05[3][f].

[¶ 11] Stewart’s credibility was in issue. Stewart testified “I guess I don’t remember the time of the accident. But there’s parts I don’t remember, you know, after the accident or before the accident too.” Stewart testified he did not remember talking to his father after the accident. He testified “I remember they wouldn’t leave me alone” at the hospital, he did not “remember talking to the police at all”; he did not remember talking to his brother Mitch; he did not “remember the [Emergency Medical Technician], Ms. Bierman”; and he did not remember what happened “£j]ust before the accident occurred.” Stewart testified he could only recall having one alcoholic drink, while a number of other witnesses testified to conduct consistent with being under the influence of alcohol. Dr. Peter Buzas testified he treated Stewart on October 14, 2000, and diagnosed him with a concussion, based upon Stewart’s reporting. Dr. Buzas testified Stewart’s neurological exam was normal and a concussion may cause emotional outbursts, belligerence or aggressive behavior. On the other hand, Dr. Patrick Evans, who treated Stewart at the hospital the night of the accident, testified Stewart’s actions that night were not an indication of a concussion.

[¶ 12] The trial court and counsel discussed the exhibits showing the prior convictions outside the presence of the jury. As in State v. Bohe, 447 N.W.2d 277, 281 (N.D.1989), “[o]ur review of the record indicates that the trial court’s ruling was made pursuant to a hearing on the record out of the jury’s presence.” Counsel agreed the burden was on the prosecution to show the probative value of Stewart’s prior convictions exceeded their prejudicial effect. As in United States v. Mahone, 537 F.2d 922, 929 (7th Cir.1976), “[t]he record before the judge ... consisted of argument by the parties over” the “prejudicial effect against the probative value of the evidence.” The trial court was told the time when the prior convictions occurred— 1991, 1992, and 1996, the nature of the prior crimes, and their similarity to or dissimilarity from the charged crimes. The court was presented with arguments about the impeachment value of the prior crimes, and the centrality or not of Stewart’s credibility. The court was presented with information and argument about factors this Court has said should be considered in weighing the probative value of a prior felony conviction and its prejudicial effect. A trial court is presumed to have done its duty and properly considered and weighed relevant information supplied for its consideration. Olson v. Olson, 2000 ND 120, ¶ 7, 611 N.W.2d 892.

[¶ 13] The trial court said it reviewed the rule, commentary, and caselaw, said counsel ably indicated the issues it needed to address, specifically mentioned the times of the convictions, mentioned Stewart’s memory loss and his defense of a possible mechanical failure, and said Stewart’s credibility was in issue. It is clear the court appropriately considered the factors involved in weighing the probative value of the prior convictions and their prejudicial effect. We conclude the trial court did “ ‘provide an adequate explanation for us to conclude it appropriately exercised its discretion’ ” in admitting Stewart’s prior felony convictions. Murchison, 541 N.W.2d at 442 (quoting State v. Eugene, 536 N.W.2d 692, 696 (N.D.1995)).

[¶ 14] We conclude the trial court did not abuse its discretion in admitting Stewart’s prior convictions into evidence for impeachment under N.D.R.Ev. 609.

Ill

[¶ 15] Stewart contends there was insufficient evidence he was under the influence of alcohol when he was driving.

[¶ 16] We recently reiterated our standard of review of a challenge to the sufficiency of the evidence:

This Court “review[s] a challenge to the sufficiency of the evidence by drawing all inferences in favor of the verdict.” City of Jamestown v. Neumiller, 2000 ND 11, ¶ 5, 604 N.W.2d 441. “Reversal is warranted only if, after viewing the evidence and all reasonable evidentiary inferences in the light most favorable to the verdict, no rational factfinder could have found the defendant guilty beyond a reasonable doubt.” Id.

City of Grand Forks v. Thong, 2002 ND 48, ¶ 18, 640 N.W.2d 721.

[¶ 17] Deputy Sheriff Greenwood testified: (1) Stewart had, “in my opinion, been drinking a lot”; (2) there was a very strong odor of alcohol on Stewart; (3) Stewart was agitated; (4) when Greenwood asked who was driving the vehicle, Stewart “said it wasn’t him. He was too drunk to drive”; (5) at the hospital, Stewart was “sometimes loud, hard to understand sometimes,” and “wasn’t cooperating”; and (6) in his opinion, Stewart “was under the influence of alcohol” that night.

[¶ 18] Emergency Medical Technician Bierman testified: (1) Stewart “was intensely intoxicated”; (2) “There was a strong odor of alcohol on John”; (3) “His eyes were glassy”; (4) “I’m quite certain he was intoxicated”; and (4) at the hospital, Stewart “got quite agitated and got quite loud and verbal.”

[¶ 19] Darren Henry, Deputy Sheriff, testified that at the hospital: (1) “Mr. Stewart’s attitude that night was very belligerent, loud, argumentative, refused to cooperate basically”; (2) Dr. Evans asked him to remove Stewart; (3) there was “a very strong odor” of alcohol on Stewart and he “had bloodshot eyes”; and (4) in his opinion, Stewart “was under the influence” of alcohol.

[¶ 20] Sheriff Watson testified: (1) at the emergency room, he asked Stewart if he had been driving and Stewart said he was too drunk to drive; (2) he detected an odor of alcohol on Stewart; (3) he knew Stewart from before; and (4) he believed Stewart was under the influence of alcohol.

[¶ 21] Dr. Patrick Evans testified that at the hospital after the accident (1) Stewart “became very belligerent” and “made threatening gestures”; (2) “I asked him as part of his medical history, whether he had been drinking or taking any drugs. He indicated to me that he had drank a lot of beer and whiskey, but no drugs”; and (3)

In terms of my medical experience, looking, observing the patient’s physical condition, the smell of alcohol mixed with oral contents, which has a very characteristic smell ... and the disinhibited sort of behavior he was exhibiting, including telling me that he had drank alcohol, my opinion was that he was in fact intoxicated with alcohol.

[¶22] In light of that evidence, and drawing all inferences in favor of the verdict, we are unable to conclude “no rational factfinder could have found the defendant guilty beyond a reasonable doubt.” City of Grand Forks v. Thong, 2002 ND 48, ¶ 18, 640 N.W.2d 721. Thus, we hold there was sufficient evidence Stewart was under the influence of alcohol when he was driving on October 10, 2000.

IV

[¶ 23] The judgments are affirmed.

[¶ 24] GERALD W. VANDE WALLE, C.J., DALE V. SANDSTROM, WILLIAM A. NEUMANN, and MARY MUEHLEN MARING, JJ., concur.


source: Caselaw Access Project

author: VANDE WALLE, Chief Justice.

license: Public Domain

text:
    2002 ND 104
    Walter NOWLING, Carol Nowling, Rose Misialek, and Julian Lizakowski, Personal Representative of the Stephie Lizakowski Estate, Plaintiffs and Appellees, v. BNSF RAILWAY, Defendant, and Bill Slominski d/b/a Minto Grain, LLC, Defendant and Appellant.
    No. 20010302.
    Supreme Court of North Dakota.
    July 11, 2002.
    Rehearing Denied Aug. 15, 2002.
    Robert C. Fleming (argued), and Neil W. Fleming (appeared), Fleming & Du-Bois, Cavalier, for plaintiffs and appellees.
    Steven C. Ekman, Welch and Ekman, Grafton, for defendant and appellant.
    David C. Thompson, Grand Forks, for amicus curiae Mark Tibert & Suzi Tibert, Melvin Tibert & Cathy Tibert.
    Ronald F. Fischer, Pearson Christensen, Grand Forks, and Nicholas B. Hall, Hodny Currie Lawyers, Grafton, for amicus curiae City of Minto.
   VANDE WALLE, Chief Justice.

[¶ 1] Bill Slominski, doing business as Minto Grain, LLC (“Slominski”), appealed from a judgment quieting title to a tract of land to Walter Nowling, Carol Nowling, Rose Misialek, and Julian Lizakowski, as personal representative of the estate of Stephie Lizakowski (“the Nowling group”). We hold a railroad right of way for an operating railroad line is a public highway under N.D. Const, art. XII, § 13 and is not subject to adverse possession or acquiescence. We reverse and remand.

I

[¶ 2] This quiet title action involves competing claims to a rectangular tract of land about 460 feet long and between 29 and 42 feet wide. The disputed tract of land is located on the east edge of a railroad right of way that extends two hundred feet from the center of an operating Burlington Northern railroad line in Min-to. The 200-foot right of way runs north and south, parallel to Burlington Northern’s railroad line. The east edge of the right of way includes a road known as Kilowatt Drive which is adjacent to the disputed strip of land and has a fifteen-foot wide ditch on the east side. The disputed tract of land is situated between four parcels of land owned by members of the Nowling group and land leased by Burlington Northern to Slominski under an “indefinite term lease” for the “sole and exclusive purpose of maintaining and operating” a grain elevator. Burlington Northern’s predecessor in interest purchased the railroad right of way from private landowners in 1881.

[¶ 3] In 1999, Slominski and the Nowl-ing group had a disagreement regarding use of the disputed tract of land. The Nowling group brought this action against Slominski and Burlington Northern to quiet title to the land. The Nowling group alleged they were entitled to quiet title under the doctrines of adverse possession or acquiescence. They alleged that they, or their predecessors in interest, had been in actual, open, hostile, continuous, and exclusive possession of the disputed land for more than twenty years and were entitled to ownership by adverse possession. They also alleged the east edge of Kilowatt Drive had been the boundary between their land and the railroad right of way for 100 years, and Burlington Northern’s silence constituted acquiescence in the road serving as the boundary. Burlington Northern and Slominski answered, alleging the actual property line between the railroad right of way and the Nowling group’s property was several feet east of Kilowatt Drive. Burlington Northern and Slominski claimed that the railroad right of way was a protected public highway under N.D. Const, art. XII, § 13, and, alternatively, that the Nowling group was not entitled to quiet title by adverse possession or acquiescence. In January 2001, Burlington Northern conveyed the leased land to Slominski by quitclaim deed that reserved to Burlington Northern a fifty-foot wide easement for roadway and utilities together with all necessary appurtenant fixtures. Burlington Northern was then dismissed from the action by stipulation.

[¶ 4] The trial court did not explicitly address Slominski’s “public highway” claim under N.D. Const, art. XII, § 13, and instead found:

[The Nowling group] or their predecessors in interest have possessed [their four] parcelfs of land] since 1972 and prior to that. That their possession has been continuous.
XIV.
That the plaintiff Walter and Carol Nowling have over the past 24 years, 1976-1999 reshaped the ditch, planted grass, trimmed old elm trees, replanted new trees after removing the elm trees, all constituting acts of possession and ownership. That the aforementioned acts took place on at least portions of the disputed strip of property. There is a clear indication in the testimony of a small ditch on the east side of Kilowatt drive. Based on the photographic ex-Mbits appears to be at most fifteen feet (15’) in width.
XV.
The BNSF railway, the owner of the disputed property did not at any time warn Nowlings of their trespass, or take any action whatsoever to stop their use and enjoyment of this property. By their silence, BNSF acquiesced in the east edge of Kilowatt drive as the boundary or certainly the east .edge of the ditch to be the boundary. The [Nowling group] removed old elm trees and replanted an entire row of new trees in approximately 1989. The railroad did nothing, said nothing. According to the survey these trees were planted at least mne feet (9’) onto [Slominski’s] property. These trees were allowed to grow over the past several years to approximate heights of fifteen to twenty feet (15'-20'). At no time did any of the defendants object until 1999.
The Court finds that the east edge of Kilowatt drive and the east edge of the ditch, although varying slightly from year to year were distinct, certain and nonspeculative, similar to Knutson [v. Jensen, 440 N.W.2d 260 (N.D.1989)]. This Court is allowing a fifteen-foot (15") [sic] strip on the basis that this portion could have been viewed by the defendants as part of the roadway. Many roadways in rural North Dakota commonly have a ditch area that is considered part of the roadway.

The court decided the Nowling group clearly and convincingly established the parties had acquiesced in a boundary between their property, which, although there had been slight variations, was the beginning of the Nowling group’s yard. The court quieted title to the Nowling group in the land east of the ditch, which resulted in the Nowling group receiving title to a rectangular strip of land 458.8 feet long and from 14 to 27 feet wide and located 15 feet east of Kilowatt Drive.

II

[¶ 5] Slominski argues a railroad right of way is a public highway under N.D. Const, art. XII, § 13, which may not be taken by adverse possession or acquiescence.. The Nowling group responds there is no constitutional prohibition against adverse possession of this railroad right of way, because Burlington Northern’s predecessor in interest originally purchased the right of way from private landowners and, although Burlington Northern operates a train on the right of way, the actual disputed tract of land has been abandoned and not used by the railroad since at least 1972.

[¶ 6] Article XII, § 13, N.D. Const., provides that “[Railways heretofore constructed or that may hereafter be constructed in this state are hereby declared public highways.”

[¶ 7] In Lincoln v. Great Northern Ry. Co., 26 N.D. 504, 144 N.W. 713 (1913), this Court considered an appeal involving a landowner’s action to compel a railroad to reduce the elevation of its track at a private crossing. Initially, the landowner had deeded the railroad a right of way through his land for the track, and the railroad established a private crossing over the track for the landowner. Later, the railroad raised the grade of the track to accommodate a raised grade at a nearby bridge, and because of an adjacent road, the railroad was unable to retain a gradual approach to the private crossing. The landowner contended he had acquired an interest in the railroad property itself, and he sued the railroad to enforce his claim in the private crossing. This Court held the pleadings established the railroad had not been ousted from the crossing, and during the entire time of the landowner’s alleged prescription, the railroad was using the crossing in the same manner it was using the rest of its track. Lincoln, 26 N.D. at 509, 144 N.W. at 714. This Court concluded the landowner had not proven a prescriptive right to the private crossing. Id. at 510-11, 144 N.W. at 714. On petition for rehearing, the landowner claimed his complaint alleged the railroad had “granted [him] a private way over its roadbed and railway tracks” and the railroad’s answer admitted the existence of a “private way.” Id. at 511, 144 N.W. at 715. Although this Court did not explicitly cite the predecessor to N.D. Const. art. XII, § 13, see 1889 N.D. Const. art. VII, § 142, it nevertheless recognized the public interest involved when a railroad right of way is used for railroad purposes:

the railway company had no right to grant any easement in the land inconsistent with its own use of the right of way for railroad purposes. This for the reason that the railroad company is itself a public servant and its own interest in the land is largely in the nature of an easement.

Lincoln, 26 N.D. at 511, 144 N.W. at 715.

[¶ 8] In A & M Properties, Inc. v. Norfolk Southern Corp., 203 W.Va. 189, 506 S.E.2d 632, 633-34, 637 (1998), the West Virginia Supreme Court of Appeals held a railroad track was considered a public highway under W. Va. Const. art. XI, § 59, which provided that “[r]ailroads heretofore constructed, or that may hereafter be constructed in this State, are hereby declared public highways.” The court concluded because adverse possession did not lie against a public highway, no party could establish an interest in a railroad right of way by adverse possession as long as the track was used for railroad purposes. A & M Properties, at 637.

[¶ 9] In Gustin v. Scheele, 250 Neb. 269, 549 N.W.2d 135, 140 (1996), the Nebraska Supreme Court considered a similar issue under Neb. Const. art. X, § 4, which provided “[Railways heretofore constructed, or that may hereafter be constructed, in this state are hereby declared public highways.” In Gustin, the railroad had acquired a right of way from private landowner in 1887, and in 1982, the plaintiffs acquired land abutting the railroad’s right of way. In 1985, the railroad discontinued operation of a line on the right of way. In 1987, the railroad quitclaimed the right of way to a third party, and the third party subsequently quitclaimed the right of way to the defendant in 1993. The Nebraska Supreme Court affirmed a judgment quieting title to a track of land to the plaintiff. Gustin, at 144. The court held railroad property that was acquired from a private landowner and held in fee simple was subject to adverse possession, but, to be consistent with the constitutional provision, the court allowed adverse possession only against railroad property that was not designated for the railroad’s line or other railroad operations. Id. at 143.

[¶ 10] In Meiers v. Wang, 192 Wis.2d 115, 531 N.W.2d 54, 60 (1995), the Wisconsin Supreme Court held public policy did not bar a private citizen’s claim for adverse possession of a railroad right of way which had been acquired by the railroad from a private landowner. The court concluded the nature of a railroad right of way acquired by private sale was different from a thoroughfare dedicated as a public road by the state, and an action against a railroad who acquired a right of way by private sale did not implicate the state, or its interest in acquiring the land for a public purpose. Id. The court concluded the railroad, as a private landowner, had an obligation to monitor its right of way for trespassers, squatters, and encroachers, and faced the same risks of adverse possession as all other private landowners. Id. Significantly, the Wisconsin Supreme Court did not rely on, or cite a constitutional provision similar to N.D. Const. art. XII, § 13, and the court effectively concluded a railroad right of way acquired by private sale was not a public highway.

[¶ 11] The common thread from these eases is that although railroad property acquired by private sale and held in fee simple may be subject to adverse possession, in states with a constitutional provision similar to N.D. Const, art. XII, § 13, a railroad right of way for an operating railroad line is a public highway which may not be taken by adverse possession.

[¶ 12] Here, the Nowling group concedes Burlington Northern is operating a railroad line in Minto, but they argue the part of the right of way sought by them has been abandoned by the railroad and has not been used by it since at least 1972. We decline, however, to parse part of an operating railroad’s right of way on an allegation that part of the land has been abandoned or not subject to railroad operations. See N.D.C.C. § 49-09-04.2 (requiring railroads with abandoned line to first offer right of way for public purposes, then to lessee operators of grain and potato warehouses located on the property, and then to adjoining agricultural landowners). Generally, abandonment of a railroad right of way is a question of intent, and the most significant indicia of abandonment is the nonuse of the right of way for railroad purposes. See Annot., What Constitutes Abandonment of a Railroad Right of Way, 95 A.L.R.2d 468, § 2 (1964). We agree with the rationale of Cash v. Southern Pac. R.R. Co., 123 Cal.App.3d 974, 177 Cal.Rptr. 474, 476 (1981) (citations omitted):

In this case, respondents have not ceased operating a railroad at the property. The fact that presently respondents have not made use of all of the “right of way” is of no consequence. Respondents may at some time want to use more land for side-tracks, or other railroad purposes, and until then they are entitled to have the land clear and unobstructed. A railroad’s construction and operation of one track on its location is an assertion of right to the entire width of its right of way. A right of way or easement granted to a railroad “is not that spoken of in the old law books, but is peculiar to the use of a railroad which is usually a permanent improvement, a perpetual highway of travel and commerce, and will rarely be abandoned by nonuser....”

[¶ 13] Here, the Nowling group concedes Burlington Northern operates a railroad line on the right of way, and we decline to conclude the alleged nonuse of a part of the right of way constitutes an abandonment of that property. Moreover, although the Nowling group does not directly argue Burlington Northern’s lease of the right of way constitutes an abandonment, Burlington Northern’s “indefinite term lease” explicitly leased the right of way for operation of a grain elevator. The Legislature has enacted statutory provisions assuring elevators and public warehouses the right to maintain and operate as elevators or warehouses on the railroad right of way. N.D.C.C. ch. 60-06. Courts in other states generally have recognized the lease of a railroad right of way to a private business does not constitute abandonment where the lease reserves a right to terminate if the land is needed for railroad purposes, and a railroad’s lease of right of way for a use that is compatible with railroad purposes does not constitute an abandonment of the right of way. See Allen v. Martin Marietta Corp., 26 N.C.App. 700, 217 S.E.2d 112, 116 (1975). See generally Annot. 95 A.L.R.2d 468, at § 8. This court has recognized the elevator industry’s usual business involves receiving, shipping and marketing grain, and the very nature of the elevator industry is such that elevators conduct their business upon a railroad right of way and near an operating track. See Northern Pac. Ry. Co. v. Morton County, 32 N.D. 627, 638-41, 156 N.W. 226, 229 (1915). In North Dakota, the use of a railroad right of way for a grain elevator is compatible with the use of land for railroad purposes and is not indicative of an intent to abandon the right of way. Rather, in apparent dicta, this Court has stated “it is doubtful at least if the railroad company can by mere abandonment forfeit any right of necessary railroad user.” Id. at 641, 156 N.W. at 230.

[¶ 14] We conclude under N.D. Const. art. XII, § 13, the right of way for an operating railroad is a public highway which is not subject to adverse possession. Cf. Cook v. Clark, 375 N.W.2d 181, 183 (N.D.1985) (in action to establish boundary by acquiescence, recognizing general rule that title to land held by the state in any capacity cannot be obtained by adverse possession or prescription). Because acquiescence evolved from and is a supplement to the doctrine of adverse possession, see Production Credit Ass’n v. Terra Vallee, Inc., 303 N.W.2d 79, 83-84 (N.D.1981), we conclude the part of the railroad right of way at issue in this case is not subject to the doctrine of acquiescence. Because we conclude the railroad right of way is not subject to the doctrine of acquiescence, it is not necessary to consider Slominski’s argument that the trial court erred in finding the parties had acquiesced in the boundary between their land.

Ill

[¶ 15] We reverse the judgment and remand for entry of judgment consistent with this opinion.

[¶ 16]DALE V. SANDSTROM, WILLIAM A. NEUMANN, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ„ concur.


author: SANDSTROM, Justice.

text:
    2002 ND 116
    STATE of North Dakota, Plaintiff and Appellee, v. Dennis GUTHMILLER, Defendant and Appellant.
    No. 20010312.
    Supreme Court of North Dakota.
    July 11, 2002.

      Ladd R. Erickson, Asistant State’s Attorney, Mandan, for plaintiff and appellee.
    Robert W. Martin, Bismarck, for defendant and appellant.
   SANDSTROM, Justice.

[¶ 1] Dennis Guthmiller appeals from a judgment of conviction for possession of a controlled substance with intent to deliver and for possession of drug paraphernalia, following a denial of his motion to suppress evidence found during a search of his residence and vehicle. He argues the search warrants authorizing the search of his vehicle and residence were not supported by probable cause. We affirm, concluding the search warrants for Guthmiller’s residence and his vehicle were supported by probable cause.

I

[¶ 2] On April 6, 2001, detectives from the Bismarck and Mandan police departments obtained two search warrants, one for Guthmiller’s vehicle, a gold 1977 Mercedes Benz, and another for his residence at 304 Fifth Avenue Northeast in Mandan, North Dakota. The search warrant for Guthmiller’s vehicle was issued sometime after midnight, and the search warrant for his residence was issued at 3:53 a.m. The evidence presented in support of each warrant was in the form of testimony by two detectives, one from the Bismarck police department and one from the Mandan police department.

[¶ 3] To support the search warrant for Guthmiller’s vehicle, one detective testified that earlier on the day the warrant for Guthmiller’s vehicle was sought, a trained dog detected controlled substances in the doors of a vehicle occupied by suspected associates of Guthmiller’s. The detective also had information, from a known individual that a man from Mandan with a Mercedes on a 4x4 chassis was involved in trafficking methamphetamine. At the same time the search warrant for Guthmil-ler’s vehicle was issued, another search warrant was issued for a residence at 200 Fifth Avenue Northeast in Mandan, allowing a search for methamphetamine and evidence of methamphetamine trafficking. The other detective testified Guthmiller’s vehicle was observed at the residence at 200 Fifth Avenue Northeast. He also testified Guthmiller was observed at 200 Fifth Avenue Northeast, and two days prior to when the search warrants were sought, Guthmiller was alleged to have been involved in two sales of methamphetamine to a confidential informant conducting a controlled purchase.

[¶ 4] The detective testified that during each purchase, the confidential informant made contact with a suspected dealer and the suspected dealer then left the scene of the purchase and contacted Guthmiller at the 200 Fifth Avenue Northeast residence. The suspected dealer then returned and sold methamphetamine to the confidential informant. Both Guthmiller and his vehicle were present at 200 Fifth Avenue Northeast when the controlled purchases took place. The detective also testified that during the second controlled purchase, the suspected dealer walked by Guthmiller’s vehicle and looked into the backseat. The detective also testified the gold 1977 Mercedes Benz was registered to Guthmiller. After hearing both detectives’ testimony, the district court judge issued a search warrant for Guthmiller’s vehicle.

[¶ 5] A few hours later, one of the detectives sought another search warrant. The second warrant was for Guthmiller’s residence at 304 Fifth Avenue Northeast in Mandan. Evidence in support of the search warrant was again provided by testimony from a detective. The detective testified he observed Guthmiller driving to his residence the night the search warrant for his vehicle was issued, and he then began to follow Guthmiller’s vehicle. The detective testified another law enforcement officer saw the vehicle leave Guthmiller’s residence, at 304 Fifth Avenue Northeast, and return a short time later, about 2:15 a.m. The detective testified that in his experience, short trips to and from a particular place in the early morning hours may indicate an individual is involved in drug trafficking and it appeared Guthmil-ler was trafficking drugs out of his home. The detective also testified that when Guthmiller’s vehicle was searched, methamphetamine was discovered. The detective testified the vehicle was registered to Guthmiller and the registration listed his address as 304 Fifth Avenue Northeast, Mandan. Finally, the detective testified that surveillance in 1998 led law enforcement to suspect Guthmiller was growing marijuana in his home, and that one of Guthmiller’s suspected associates, who was stopped earlier that evening, had a prior conviction for trafficking marijuana. After hearing the detective’s testimony, the district court issued a search warrant for Guthmiller’s residence at 304 Fifth Avenue Northeast in Mandan.

[¶ 6] Items discovered during the searches included cash, owe sheets, a handgun, methamphetamine, and drug paraphernalia. Guthmiller was charged with one count of possession of a controlled substance with intent to deliver and one count of possession of drug paraphernalia. Guthmiller moved to suppress the evidence from the searches, arguing the warrants were not supported by sufficient evidence of probable cause.

[¶ 7] A different district court judge reviewed the sufficiency of the evidence supporting the search warrants. The district court detailed the evidence supporting the warrants and upheld the search warrants issued for Guthmiller’s vehicle and his residence at 304 Fifth Avenue Northeast in Mandan. The district court concluded:

As the Court first reviewing the magistrate’s decisions finding probable cause for the issuance of [both] search warrants, this Court notes that “[w]hether probable cause exists to issue a search warrant is a question of law” and that it should “defer to the magistrate judge’s findings if there is a substantial basis for the determination probable cause exists.” This Court must “resolve doubt about the sufficiency of [the testimony] in support of [the] requests] for [the] ... search warrants] in favor of sustaining the searches].” This Court is satisfied the magistrate had ample facts to conclude there was probable cause for the issuance of [both] search warrants,

(alterations in original). A jury subsequently found Guthmiller guilty of possession of a controlled substance with intent to deliver and possession of drug paraphernalia.

[¶ 8] The district court has jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 29-28-06.

II

[¶ 9] On appeal, Guthmiller contends there was not probable cause to support the search warrants.

[¶ 10] “Probable cause is required for a search warrant under the Fourth Amendment to the United States Constitution and Article I, Section 8 of our state constitution.” State v. Thieling, 2000 ND 106, ¶ 7, 611 N.W.2d 861. “Probable cause to search exists ‘if the facts and circumstances relied on by the magistrate would warrant a person of reasonable caution to believe the contraband or evidence sought probably will be found in the place to be searched.’” Id. (quoting State v. Johnson, 531 N.W.2d 275, 278 (N.D.1995)).

Probable cause to search does not require the same standard of proof necessary to establish guilt at trial; rather, probable cause to search exists if it is established that certain identifiable objects are probably connected with criminal activity and are probably to be found at the present time at an identifiable place.

State v. Ringquist, 433 N.W.2d 207, 212 (N.D.1988). “Although each piece of information may not alone be sufficient to establish probable cause and some of the information may have an innocent explanation, ‘probable cause is the sum total of layers of information and the synthesis of what the police have heard, what they know, and what they observed as trained officers.’ ” Thieling, at ¶ 7 (quoting State v. Damron, 1998 ND 71, ¶ 7, 575 N.W.2d 912 (citations omitted)). “The task of the issuing magistrate is to make a practical, commonsense decision whether, given all the information considered together, there is a fair probability contraband or evidence of a crime will be found in a particular place.” State v. Rydberg, 519 N.W.2d 306, 308 (N.D.1994).

[¶ 11] The trial court reviewing the validity of a search warrant decides whether the information before the magistrate established probable cause to search. Id. “Whether probable cause exists to issue a search warrant is a question of law.” Thieling, 2000 ND 106, ¶ 8, 611 N.W.2d 861. On appeal, we review the sufficiency of information before the magistrate independent of the trial court’s decision and use the totahty-of-the-circumstances test. Rydberg, at 308. “ We give deference to a magistrate’s factual findings in determining whether probable cause exists.’ ” Id. (quoting State v. Frohlich, 506 N.W.2d 729, 732 (N.D.1993)). “We consider all information for probable cause together, not in a piecemeal manner.” State v. Hage, 1997 ND 175, ¶ 11, 568 N.W.2d 741. “ We resolve doubt about the sufficiency of [the evidence] in support of a request for a search warrant in favor of sustaining the search.’ ” Thieling, at ¶ 8 (quoting State v. Wamre, 1999 ND 164, ¶ 7, 599 N.W.2d 268 (quotations and citations omitted)).

A

[¶ 12] Guthmiller argues the only evidence presented in support of the search warrant for his vehicle was the testimony by a police detective that a suspected drug dealer looked in the backseat of his automobile, and he suggests some of the evidence presented by the State was merely evidence of innocent activity.

[¶ 13] Guthmiller ignores much of the evidence presented to the magistrate. “ ‘In making a determination of probable cause the relevant inquiry is not whether particular conduct is “innocent” or “guilty,” but the degree of suspicion that attaches to particular types of noncriminal acts.’ ” State v. Duchene, 2001 ND 66, ¶ 15, 624 N.W.2d 668 (quoting Illinois v. Gates, 462 U.S. 213, 244 n. 13, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)).

[¶ 14] The magistrate was presented with evidence that: (1) an identified informant told the detectives a man from Mandan with a Mercedes on a 4x4 chassis was involved in trafficking methamphetamine; (2) the 1977 gold Mercedes Benz was registered to Guthmiller; (3) Guthmiller was involved in a controlled purchase of methamphetamine on each of the previous two days; (4) during each purchase, the suspected dealer left the location of the sale, contacted Guthmiller at 200 Fifth Avenue Northeast, returned with methamphetamine, and completed the sale; (5) Guthmiller and his vehicle were present at 200 Fifth Avenue Northeast while the controlled purchases took place; and (6) the residence at 200 Fifth Avenue Northeast was not Guthmiller’s home. The detectives received information from an informant that Guthmiller was involved in trafficking methamphetamine, and the detectives verified the information through the two controlled purchases of methamphetamine that showed Guthmiller was involved in trafficking methamphetamine. See State v. Hage, 1997 ND 175, ¶ 16, 568 N.W.2d 741. The detectives also verified that the 1977 gold Mercedes Benz was registered to Guthmiller.

[¶ 15] “[P]robable cause is the sum total of layers of information and the synthesis of what the police have heard, what they know, and what they observed as trained officers ... [which is not weighed in] individual layers but [in] the ‘laminated’ total.” State v. Ringquist, 433 N.W.2d 207, 215 (N.D.1988) (citations and quotations omitted) (alterations in original). “ ‘[T]he courts must take into account inferences and deductions that a trained and experienced officer makes.’ ” State v. Olson, 1998 ND 41, ¶ 24, 575 N.W.2d 649 (quoting State v. Mische, 448 N.W.2d 415, 419 (N.D.1989)). The evidence presented to the magistrate showed that Guthmiller was involved in methamphetamine dealing at 200 Fifth Avenue Northeast, a location not his home, and that his vehicle, a 1977 gold Mercedes Benz, was present at 200 Fifth Avenue Northeast during these transactions. It was reasonable and logical for the detectives and the magistrate to infer that Guthmiller’s vehicle was used in trafficking methamphetamine.

[¶ 16] The evidence presented to the magistrate shows the totality of the circumstances established there was probable cause to warrant that a person of reasonable caution would believe evidence of methamphetamine trafficking would be found in Guthmiller’s vehicle.

B

[¶ 17] Guthmiller also argues the only evidence in support of the search warrant for his residence at 304 Fifth Avenue Northeast was the controlled substances found after the search of the residence at 200 Fifth Avenue Northeast. He argues the remaining information in support of the warrant is stale or does not create a sufficient nexus with his residence.

[¶ 18] Guthmiller contends the evidence that a law enforcement task force believed he was growing marijuana at his residence in 1998 was stale. “An application for a warrant that is based upon stale information of previous misconduct is insufficient because it does not establish probable cause that similar or other improper conduct is continuing to occur.” State v. Ringquist, 433 N.W.2d 207, 213 (N.D.1988). The State alleges this information was included as additional evidence of where Guthmiller lived, not as evidence he was growing marijuana. In the absence of other evidence, the 1998 information might not be sufficient to establish probable cause for a search warrant, but other evidence exists to support a showing of probable cause.

[¶ 19] In addition, Guthmiller argues the evidence presented did not show a sufficient nexus with his home to allow the second search warrant to be issued. Guth-miller contends the facts in his case are similar to the facts in State v. Mische, 448 N.W.2d 415 (N.D.1989), in which evidence from the search of the defendant’s trailer home was excluded because there was not probable cause to support the search warrant.

[¶ 20] In Mische, the law enforcement officers first obtained a search warrant for the home of the defendant’s parents, and when no evidence of drug trafficking was found there, they obtained a search warrant for the defendant’s trailer home in Lincoln. Id. at 416. This Court said the officers “had no actual knowledge of any activity at the trailer home in Lincoln.” Id. at 421. This Court concluded:

Thus, rather than supporting probable cause that [the defendant] kept drugs at his Lincoln residence the [officer’s] affidavit may actually indicate the opposite, i.e., that [the defendant] used his parents’ Bismarck residence from which to deal and to keep his contraband. Although all the previous indications recited in both [the officer’s] affidavits connected [the defendant] with the Bismarck residence, it was only when they found nothing but the Inosi-tol there and learned that [the defendant] was purchasing a trailer home in Lincoln that they attempted to connect [the defendant’s] suspected activities with that residence rather than the one in Bismarck. The only connection they could produce is the general contention in [the officer’s] affidavit that individuals who regularly deal in controlled substances keep those substances at their residences; but in view of the activities linking [the defendant] with the Bismarck residence, that conclusion, without further substantiation, appears to have been highly suspect.

Id.

[¶ 21] Guthmiller correctly states “the evidence before the magistrate must show a nexus between the home to be searched and the contraband sought.” State v. Olson, 1998 ND 41, ¶ 22, 575 N.W.2d 649. However, he incorrectly concludes the evidence presented to the magistrate did not create a sufficient nexus.

Although the evidence may not provide a direct link to the defendant’s residence, “circumstantial evidence alone may establish probable cause” to support a search warrant. This nexus between the residence to be searched and the evidence sought need not be established by direct observation. Thus, the location of the contraband may be inferred by connecting circumstances.

State v. Hage, 1997 ND 175, ¶ 20, 568 N.W.2d 741 (citations omitted).

[¶ 22] Again, Guthmiller ignores much of the evidence presented to the magistrate. One detective testified that after they received the search warrant for Guthmiller’s vehicle, he observed the vehicle making short trips to and from Guth-miller’s residence shortly after 2:00 a.m. The detective also testified that in his experience, a vehicle making short trips to and from a particular place in the early morning hours may indicate possible involvement in drug trafficking. In addition, once Guthmiller’s vehicle was stopped in order to execute the search warrant issued for it, a cursory search was performed and methamphetamine was found in the vehicle. As we have previously stated, “the courts must take into account inferences and deductions that a trained and experienced officer makes.” State v. Olson, 1998 ND 41, ¶ 24, 575 N.W.2d 649 (quoting State v. Mische, 448 N.W.2d 415, 419 (N.D.1989)). In addition to the detective’s training, the search of Guthmiller’s vehicle shortly after it made two trips to and from his residence revealed methamphetamine, lending credibility to the inference that Guthmiller was trafficking methamphetamine from his residence. As this Court stated in State v. Ringquist, “Although each bit of information in this case, by itself, may not be enough to establish probable cause and some of the information may have an innocent explanation, ‘probable cause is the sum total of layers of information and the synthesis of what the police have heard, what they know, and what they observed as trained officers ... [which is not weighed in] individual layers but [in] the “laminated” total.’” 433 N.W.2d 207, 215 (N.D.1988) (citations omitted) (alterations in original).

[¶ 23] Viewed in light of the totality of the circumstances, the evidence presented to the magistrate created a logical and reasonable inference that evidence of methamphetamine trafficking would- be found in Guthmiller’s residence at 304 Fifth Avenue Northeast, Mandan.

Ill

[¶ 24] Because the facts and circumstances relied on by the magistrate would warrant a person of reasonable caution to believe evidence of methamphetamine trafficking would be found in Guthmiller’s vehicle and residence, we affirm the district court’s judgment of conviction.

[¶ 25] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ., concur.


author: ZINTER, Justice.

text:
    2002 SD 64
    Wayne KRAUSE and Kathy J. Cooper-Krause, Plaintiffs and Appellants, v. David REYELTS, d/b/a Reyelts Construction, Defendant and Appellee.
    No. 22103.
    Supreme Court of South Dakota.
    Considered on Briefs April 22, 2002.
    Decided June 5, 2002.
    Mr. Brad A. Schreiber of Day, Morris & Schreiber, Belle Fourche, for plaintiffs and appellants.
    Mr. Jon J. LaFleur of LaFleur, LaFleur & LaFleur, Rapid City, for defendant and appellee.
   ZINTER, Justice.

[¶ 1.] Wayne and Kathy Cooper-Krause (hereinafter referred to as Wayne, Kathy, or Krauses as the context requires), sued their general contractor, David Reyelts (Reyelts). They claimed Reyelts was directly and vicariously liable for construction defects in their house. Reyelts raised the affirmative defense of release. Reyelts claimed that he was released because Krauses released Reyelts’s subcontractor. The trial court agreed and granted summary judgment in favor of Reyelts. We affirm in part, reverse in part, and remand.

FACTS AND PROCEDURAL HISTORY

[¶ 2.] On March 5, 1993, Krauses entered into a contract with Reyelts for the construction of a home in Rapid City. Reyelts subcontracted with Melvin Geidel Excavation (Geidel) to perform the excavation work on the project. The excavation work included digging the foundation and footings, back filling, and final grading.

[¶ 3.] Construction was completed in August of 1993. About a month later, Krauses noticed heaving and cracking concrete in the basement. In October of 1993, a leaking sewage pipe was discovered under the driveway. The defect in the pipe was caused by Geidel’s improper backfill and compaction.

[¶ 4.] As the general contractor, Rey-elts attempted to fix the defects. Reyelts spent $18,712.32 between October 1993 and February 1995 repairing the problems caused by the cracked sewer pipe and the defective excavation work performed by Geidel. Notwithstanding those repairs, new problems began to appear in the basement, in the patio, and in the garage floor and foundation.

[¶ 5.] Geidel’s liability insurance company ultimately agreed to reimburse Rey-elts for the initial repairs. In return, Wayne Krause and Reyelts signed a release in favor of Geidel. The release provided:

Reyelts Construction and Wayne Krause ... hereby release and discharge Melvin Geidel Excavation ... from any and all claims, demands, damage, lawsuits, and causes of action arising from Melvin Geidel Excavation’s work ... which include:
1) A hole in the sewage pipe, which was back filled by Melvin Geidel Excavation ... and
2) Improper final grading north side of the garage....

(emphasis added). Kathy witnessed the release, but she did not sign it in her individual capacity.

[¶ 6.] After receiving the release, Gei-del’s insurer paid Reyelts for the repair work Reyelts performed. On the same day the release was signed, the Krauses entered into a separate contract in which Reyelts agreed to correct the new problems. The new repairs specifically included sealing a concrete wall, constructing two swales outside the west side of the garage, replacing a concrete section of the basement floor, monitoring a garage door for repair, installing drain tile, and inspecting for water after the tile was installed. Except for the replacement of a portion of the basement floor, Reyelts completed this additional work.

[¶ 7.] Even after Reyelts completed these additional repairs, Krauses continued to experience problems. Krauses claim that the following “additional” problems arose: cracking and heaving of the concrete in the basement; cracking of the concrete driveway; cracking of the south and west foundation walls of the garage; settling and cracking of the concrete patio; pooling of water in the garage; cracking in the sheetrock; and doors not closing properly.

[¶ 8.] These latest problems were not fully repaired by Reyelts. Therefore, Krauses hired Ron Huntley (Huntley), a concrete contractor, to correct them. During those repairs, Huntley noticed more construction defects. Two of those defects included a void of at least four inches between the concrete and the fill in the basement, and a failure to construct a required footing.

[¶ 9.] Krauses sued Reyelts claiming negligence, breach of express warranty, breach of implied warranty of fitness for a particular purpose, breach of contract, and fraud. Reyelts raised the affirmative defense of release. Reyelts claimed that the release of Geidel (the subcontractor) released Reyelts (the general contractor). The trial court agreed and granted Rey-elts’s motion for summary judgment. Krauses appeal.

STANDARD OF REVIEW

[¶ 10.] Summary judgment is authorized “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law.” We will affirm only when there are no genuine issues of material fact and the legal questions have been correctly decided. All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party. The burden is on the moving party to clearly show an absence of any genuine issue of material fact and an entitlement to judgment as a matter of law.

Jorgenson v. Vener, 2002 SD 20, ¶ 9, 640 N.W.2d 485, 487 (internal citations omitted).

[¶ 11.] The effect of the release is the dispositive issue in this appeal. Because Wayne signed the release and Kathy only witnessed it, we consider Wayne and Kathy’s claims separately.

DECISION

[¶ 12.] 1. Whether Wayne’s release of Geidel (the agent/subcontractor) released Reyelts (the principal/contractor).

[¶ 18.] Wayne notes that, on its face, the release only referred to Geidel. Wayne also submitted an affidavit indicating that the release was intended to release only Geidel, not Reyelts. Wayne points out that we have previously held that the parties’ intent governs the scope of a release. Maryland Cas. Co. v. Delzer, 283 N.W.2d 244, 248 (S.D.1979).

[¶ 14.] Reyelts, however, contends that Wayne’s intent is irrelevant. Reyelts argues that even if Wayne did not intend to release Reyelts, a release of the agent/subcontractor also releases any vicarious liability claim against the principal/general contractor. Reyelts therefore claims that Wayne’s suit is barred by the release.

[¶ 15.] In Estate of Williams v. Vandeberg, 2000 SD 155, 620 N.W.2d 187, we considered a release that attempted to expressly reserve a vicarious liability claim against the principal while releasing the agent. We acknowledged a split of authority on this issue. After considering both views, we held that “a release of an agent is a release of the principal even when the release contains an express reservation and where the claim is premised on the single act of the agent.” Id. at ¶ 15, 620 N.W.2d at 191. Therefore, Reyelts is correct that even if Wayne did not intend to release his vicarious liability claim against Reyelts, the language in Williams does not permit the parties’ intent to override the release of the vicarious liability claims.

[¶ 16.] Wayne, however, argues that Williams should not apply to a case involving contractual liability. Wayne contends that Williams was only concerned with controlling circuitous litigation in tort cases, and therefore, Williams should not apply to a case principally involving a contract. We disagree.

[¶ 17.] Williams involved a wrongful death action resulting from -a car accident. The estate of Williams brought suit against the other driver. As a part of a settlement between the estate and the driver’s insurance carrier, the estate executed a release of all claims against the driver. However, because that release contained an express reservation of the right to sue the driver’s employer, the estate contended that it could sue the employer on a vicarious liability theory. We disagreed, holding that a release of the agent barred recovery of all claims arising out of the agent’s conduct. Id. at ¶ 9 and ¶ 15, 620 N.W.2d at 190, 191.

[¶ 18.] Significantly, our decision in Williams was not based upon the law of torts or the law of contribution among joint tortfeasors. Rather, our decision was premised on the law of agency and vicarious liability. Id. at ¶ 15, 620 N.W.2d at 191. Like the situation in Williams, Krauses seek to impose a vicarious liability claim upon a principal for the conduct of an agent that had been previously released. Because both cases involved vicarious liability claims against a principal, Williams applies.

[¶ 19.] In applying the Williams rule, we start by noting that Geidel was hired by Reyelts to perform the excavation work. Therefore, any liability of Reyelts arising from Geidel’s work is premised on Reyelts’s vicarious liability. The release, however, clearly stated that Wayne released Geidel from “any and all claims” arising from Geidel’s work. Therefore, under Williams, the trial court properly held that the release of Geidel bars Wayne from bringing a vicarious liability claim against Reyelts for Geidel’s defective work.

[¶ 20.] The rule in Williams does, however, only apply to claims arising out of the original acts of the agent. We emphasized in Williams that “all” claims at issue arose out of the agent’s acts. See id. at ¶ 9 and ¶ 15, 620 N.W.2d at 190, 191. Therefore, we must next determine whether all of Krauses’ current claims arose out of Geidel’s work, or whether some claims were independent of Geidel’s work.

[¶ 21.] Reyelts submitted an affidavit claiming that all current problems stemmed from and related back to the excavation work of Geidel. Wayne, however, disagreed arguing that there were numerous, substantial defects that were unrelated to the work performed by Geidel. Wayne alleged that unrelated defects included: cracks in the concrete basement; cracks in the concrete driveway; cracks in the south and west foundation walls of the garage; cracks and settled concrete in the patio; pooled water in the garage; cracks in the sheetrock; and doors that would not close.

[¶ 22.] We acknowledge that many of these claims appear to arise out of Geidel’s work. Wayne, however, relies on a deposition in which he was asked, “[i]s it your contention that the problems that you’re continuing to have go back to the problems in the original Geidel construction?” In response Wayne only conceded that part of the current problems arose out of Geidel’s work. Wayne replied, “[p]art of those problems, yes .... ” (emphasis added). Additionally, in resisting summary judgment, Wayne pointed out that Huntley discovered a required footing was not even constructed by Reyelts. The record finally reflects that as much as $93,000 in additional work is now claimed necessary for repairs. Viewing all of the evidence most favorably to the non-moving party, Wayne has raised material issues of disputed fact concerning the cause or source of some current problems. Therefore, we remand for the trial court to consider which, if any, of Wayne’s vicarious liability claims are barred because they arose out of Geidel’s work, and which, if any, of Wayne’s other claims may be pursued because they do not arise out of Geidel’s work.

[¶ 23.] 2. Whether Kathy Krause is bound by the release.

[¶ 24.] The release only provided that “Wayne Krause” released Geidel. Kathy testified that she did not intend to release anyone by witnessing the release. Kraus-es argue that because Kathy only signed the release as a witness, she is not bound by it. Krauses argue that a husband’s execution of a release is not, in and of itself, binding on a wife.

[¶ 25.] Reyelts does not dispute that Kathy did not intend to release Reyelts. Instead, Reyelts claims that Kathy is bound by Wayne’s release because Wayne had actual or ostensible authority to bind Kathy.

[¶ 26.] The trial court did not specifically rule on this issue. The trial court’s decision dismissing Kathy’s claims because of the release did, however, necessarily determine this issue by implication. Because this case must be remanded, we provide some guidance on the issue.

[¶ 27.] We note that “a marital relationship alone does not constitute a husband an agent of his wife.” Bauer v. Graner, 266 N.W.2d 88, 95 (N.D.1978). In general, “one who is not a party to a contract is not bound by the contract, and this general rule has been applied to hold that one spouse’s signature on a contract does not bind a nonsigning spouse.” Poarch v. Alfa Mut. Ins. Co., 799 So.2d 949, 955 (Ala.Civ.App.2000).

[¶ 28.] Although Reyelts argues that Wayne had actual or ostensible authority to bind Kathy, the determination of that question generally is a question of fact for the jury. Bruins v. Anderson, 73 S.D. 620, 627, 47 N.W.2d 493, 496 (1951). We therefore decline to accept Reyelts’s argument that Kathy is bound, as a matter of law, by her husband’s execution of the release. The trial court should resolve this issue of fact on remand.

CONCLUSION

[¶ 29.] By operation of law, Wayne released Reyelts for all vicarious liability claims arising from Geidel’s work. As a result, Wayne may only sue Reyelts for those defects that did not arise out of Geidel’s work. The trial court must resolve the factual issues concerning the cause of the current defects. Factual issues also exist regarding Wayne’s authority to bind Kathy on the release. Kathy may maintain her action against Reyelts on all claims unless she was bound by the release. If Kathy is bound by the release, she may only sue Reyelts for those defects that did not arise out of Geidel’s work.

[¶ 30.] Affirmed in part, reversed in part, and remanded.

[IT 31.] GILBERTSON, Chief Justice, and SABERS, AMUNDSON, and KONENKAMP, Justices, concur.

      . It is alleged that the concrete floor was not replaced because Krauses had not paid Rey-elts for the swales.

      . Wayne also argues that there was no consideration for the release, and therefore, the release is not an enforceable contract. SDCL 20-7-10, however, provides that an obligation may be released in writing, with or without new consideration. See Maryland Cas. Co., 283 N.W.2d at 248 (stating that under SDCL 20-7-10, an obligation may be released in writing without new consideration).

      . SDCL 59-3-2 provides that “[ajctual authority is such as a principal intentionally confers upon the agent, or intentionally or by want of ordinary care, allows the agent to believe himself to possess." SDCL 59-3-3 provides that "[ojstensible authority is such as a principal intentionally, or by want of ordinary care, causes or allows a third person to believe the agent to possess.”

      .We do not consider other legal theories that may bind Kathy.


author: ZINTER, Justice. SABERS, Justice

text:
      2002 SD 67
    Larry BRAUN, Plaintiff and Appellant, v. NEW HOPE TOWNSHIP, a political subdivision of the County of Brown, State of South Dakota, Defendant and Appellee, and T-Lakota Acres, Inc., a corporation, Defendant and Appellee, v. Scott Rozell, Third-Party Defendant and Appellee. Larry Braun, Plaintiff and Appellee, v. New Hope Township, a political subdivision of the County of Brown, State of South Dakota, Defendant and Appellant, and T-Lakota Acres, Inc., a corporation, Defendant and Appellee, v. Scott Rozell, Third-Party Defendant and Appellee.
    Nos. 22097, 22137.
    Supreme Court of South Dakota.
    Considered on Briefs April 22, 2002.
    Decided June 5, 2002.

      Thomas P. Tonner of Tonner, Tobin and King, Aberdeen, for plaintiff Braun.
    Greg L. Peterson of Bantz, Gosch, Cremer, Peterson & Sommers, Aberdeen, for defendant New Hope Township.
    Chester A. Groseclose of Richardson, Groseclose, Wyly, Wise <⅞ Sauck, Aberdeen, for defendant T-Lakota Acres.
    Richard L. Russman of Rice, Ewinger & Russman, Aberdeen, for defendant Rozell.
   ZINTER, Justice.

[¶ 1.] Plaintiff Larry Braun (Braun) and defendant New Hope Township (Township) appeal from the trial court’s order granting summary judgment in favor of defendants T-Lakota Acres, Inc. (T-Lakota) and Scott Rozell (Rozell). T-Lakota and Rozell were allegedly negligent in either removing or failing to properly reinstall a township-road sign that warned of a washout. Township reinstalled the warning sign after T-Lakota’s and Rozell’s alleged negligence. After entry of summary judgment, Township remained the sole defendant. We affirm.

FACTS AND PROCEDURE

[¶ 2.] The winter of 1996-97 produced heavy snowfall in the Township. The following spring, seven Township roads were washed out by runoff from the melting snow. To protect the public, Township installed a “ROAD CLOSED” sign about three-quarters of a mile from one of the washouts. The sign was mounted on a post in the center of the road.

[¶ 3.] On May 23, 1997, Ron Backman (Backman), an employee of T-Lakota, drove T-Lakota’s tractor to Rozell’s farm to deliver a 24-foot-wide farm implement. Backman also intended to help Rozell plant soybeans on the Rozell farm. As Backman proceeded toward the farm, he observed the “ROAD CLOSED” sign in the middle of the road. In order to get to Rozell’s farm with the implement, Back-man had to remove the sign from the middle of the road. When Backman pulled the sign out of the road, a portion of the post broke, and he placed the sign on the side of the road.

[¶ 4.] When the planting was completed at Rozell’s farm, Backman and Rozell met to try and put the sign back up. They were not successful. They were only able to prop the sign up against a pile of rocks in the middle of the road. Before leaving, Rozell told Backman that Rozell would return later and put the sign up with a post maul.

[¶ 5.] Rozell, however, forgot to fix the sign. When he did return a few days later, Rozell found that the sign was already reinstalled by someone else. It was later discovered that Township learned the sign was down, and two members of the Township Board reinstalled it. They did not, however, reinstall the sign in the middle of the road. Instead, they reinstalled it on the right side of the road. Because the fence post was broken, the sign was also somewhat shorter than it was before Backman removed it.

[¶ 6.] On June 13, 1997, about three weeks after the sign was reinstalled by Township, Braun was driving his Suburban on the road in order to examine his sum flower field. As he drove past his-field, Braun descended down a hill toward the creek that had washed out. Braun claims that he did not see the sign on the right side of the road. He also claims that he did not see the washout in time to avoid it. Braun was unable to stop before driving into the wash-out. He was severely injured as a result of the accident.

[¶ 7.] Braun sued Township and T-Lakota for the injuries he sustained. Both defendants denied responsibility and asserted affirmative defenses. After depositions were taken, T-Lakota moved for summary judgment. The motion was initially denied. After further depositions were taken, Rozell was joined as a third-party defendant. T-Lakota subsequently renewed its motion for summary judgment. Rozell joined in the motion. The trial court ultimately granted the motion. The trial court concluded that Township’s alleged negligence was a superseding cause that relieved Rozell and T-Lakota (Backman) of liability for their alleged negligence. Braun appeals.

STANDARD OF REVIEW
[¶ 8.] In reviewing a grant or a denial of summary judgment under SDCL 15-6-56(c), we must determine whether the moving party demonstrated the absence of any genuine issue of material fact and [established] entitlement to judgment on the merits as a matter of law. The evidence must be viewed most favorably to the nonmoving party[,] and reasonable doubts should be resolved against the moving party.... Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied.

South Dakota State Cement Plant Com’n v. Wausau Underwriters Ins. Co., 2000 SD 116, ¶ 9, 616 N.W.2d 397, 400-01.

[¶ 9.] In this case the disposi-tive issue questions whether a third party’s

negligence was a superseding cause of the accident. As is explained later, this is a legal 'question of duty. See infra f 11. “For the law to impose a duty, a sufficient relationship must exist between the parties.” Gilbert v. United Nat. Bank, 436 N.W.2d 23, 27 (S.D.1989) (internal citations omitted). Foreseeability may also create a duty. Smith v. Lagow Const. & Developing Co., 2002 SD 37, ¶ 17, 642 N.W.2d 187. “Although foreseeability is a question of fact in some contexts, foreseeability in defining the boundaries of a duty is always a question of law.” Id. at ¶ 18, 642 N.W.2d 187 (additional citations omitted). “Foreseeability in the ‘duty’ sense is different from foreseeability in fact issues bearing on negligence (breach of duty) and causation.” Id. Because this case questions the existence of a duty (created by relationship or through foreseeability), the issue is a question of law that is fully reviewable by this Court. Gilbert, 436 N.W.2d at 27; Lagow, 2002 SD 37 at ¶ 18, 642 N.W.2d at 192.

ANALYSIS AND DECISION

[¶ 10.] We have previously recognized the common law rule that intervening/superseding causes may relieve a negligent actor from that actor’s antecedent negligence. “When the natural and continuous sequence of causal connection between the negligent conduct and the injury is interrupted by a new and independent cause, which itself produces the injury, that intervening cause operates to relieve the original wrongdoer of liability.” Schmeling v. Jorgensen, 77 S.D. 8, 18, 84 N.W.2d 558, 564 (1957) (emphasis added) (internal citations omitted). However, “[t]he intervening cause must be a superseding cause. It must so entirely supersede the operation of the defendant’s negligence that it alone, without his negligence contributing thereto, produces the injury.” Id. (emphasis added).

[¶ 11.] Although we have acknowledged this rule in a number of cases, we have not specifically considered whether it is an issue of duty or causation. We also have not considered the circumstances under which the rule should be applied.

[¶ 12.] The intervening/superseding cause analysis questions the extent of the obligation, or duty, of the original actor who was negligent. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 44 at 301 (5th ed.1984). Although the question is often expressed in terms of “cause” or “proximate cause,” those terms avoid the real issue. The appropriate question “is one of negligence and the extent of the obligation: whether the [original actor’s] responsibility extends to such interventions, which are foreign to the risk the [original actor] has created. It is best stated as a problem of the scope of the legal obligation to protect the plaintiff against such an intervening cause.” Id. at 313.

[f 18.] Although Township’s alleged negligence was an intervening cause, not all-intervening causes relieve the original actor of liability. As we stated in Schmeling, the intervening cause must also be a superseding cause. Schmeling, 77 S.D. at 19, 84 N.W.2d at 564. Although courts have not always distinguished intervening and superseding forces or causes, the Restatement (Second) of Torts delineates the two. “An intervening force is one which actively operates in producing harm to another after the actor’s negligent act or omission has been committed.” Restatement (Second) of. Torts §. 441(1). (1984). If the act or operation of an intervening force prevents the . original actor’s antecedent negligence from becoming a legal cause in bringing about the harm to another, it then becomes a superseding cause. Id. at § 441(2).

[¶ 14.] The determination of when an intervening cause becomes a superseding cause is based on a number of factors. Restatement at §§ 441(2), 442-58. Two common factors are the relationship of the parties and foreseeability. Lagow, 2002 SD 37 at ¶¶ 12, 16, 17, 642 N.W.2d at 192 (duty may arise from a relationship or from a foreseeable risk of harm).

[¶ 15.] More specific rules for determining whether a third party’s actions become a superseding cause are set forth in § 452 of the Restatement. Generally, “the failure of a third person to act to prevent harm to another threatened by the actor’s negligent conduct is not a superseding cause of such harm.” Restatement at § 452(1). There is, however, an exception that is the issue in this case. “Where because of lapse of time or otherwise, the duty to prevent harm to another threatened by the actor’s negligent conduct is found to have shifted from the actor to a third person, the failure of the third person to prevent such harm is a superseding cause.” Id. at § 452(2) (emphasis added). In such cases the duty, and therefore the entire responsibility, shifts to the third person and the original actor is relieved of liability. Id. at § 452(2) com. d.

[¶ 16.] In order to determine whether an actor’s liability is shifted to a third person, one must look to see if the intervening cause was foreseeable. Prosser & Keeton, supra, § 44 at 302. The risk created by the original actor may include the intervention of the foreseeable negligence of others. Id. If such intervening negligence was foreseeable, the original actor remains liable because “[fjoreseeable intervening forces are within the scope of the original risk ....” Id. § 44 at 303. As we noted in Lagow, “[f]oreseeability of high risk of harm is the basis for delineating the boundaries for a duty of protection.” Lagow, 2002 SD 37 at ¶ 17, 642 N.W.2d at 192 (additional citations omitted). See also McKennan Hosp., 437 N.W.2d at 202 (stating that “[t]he act of a third party does not excuse the first wrongdoer if such act was, or should have been foreseen”). Therefore, we must decide whether it was reasonably foreseeable to T-Lakota and Rozell that Township, after having affirmatively acted to reinstall the sign, would do so in a negligent manner.

[¶ 17.] In deciding that question, it is significant that Township had an independent statutory duty to erect and maintain adequate barriers and signs to protect the public from damaged township roads. SDCL 31-32-10 provides that a township is responsible for the maintenance of its highways if they are damaged by a flood. The statute specifically requires townships to “erect guards over such defect or across such highway of sufficient height, width, and strength to guard the public from accident or injury....” Id. Additionally, SDCL 31-28-6 requires townships to erect “substantial and conspicuous warning sign[s]” on the right-hand side of the highway for “point[s] of danger.” These statutes create a duty of care. See Lagow, 2002 SD 37 at ¶ 38, 642 N.W.2d at - (Gilbertson, C.J., dissenting) (a legal obligation can be created by enactment of a statute).

[¶ 18.] It is also significant that this accident happened after Township affirmatively acted under these statutes to remedy the danger. Because Township reinstalled the sign before the accident, T-Lakota’s and Rozell’s acts or omissions were no longer creating the condition or danger which ultimately harmed Braun. In light of these statutes, the affirmative acts of Township, and the passage of time, was it reasonably foreseeable that Township would reinstall the sign in a manner that was allegedly inadequate to guard the highway? We think not.

[¶ 19.] Prosser has expressly recognized the superseding responsibility of third parties like Township, who become aware of a danger and deal with it before the original actor’s negligence has caused harm. Prosser notes that in those situations, an original actor is sometimes “free to assume that when a third party becomes aware of the danger, and is in a position to deal with it, the third person will act reasonably. It is only where misconduct was to be anticipated, and taking the risk of it was unreasonable, that liability will be imposed for consequences to which such intervening acts contributed.” Prosser & Keeton, supra, § 44 at 313. If a third person “fully discovers the danger, and then proceeds, in deliberate disregard of it ... to inflict upon the plaintiff the danger which the third person has discovered” the responsibility is shifted to the third party. Id § 44 at 318-19. Under these circumstances, T-Lakota and Rozell could not have foreseen that Township, having reinstalled the sign, would have done so in a manner which allegedly did not meet Township’s duty.

[¶20.] Similar situations were considered in Oklahoma and Minnesota. In Greenwood v. Lyles and Buckner, Inc., 329 P.2d 1063 (Okla.1958), a construction company constructed an open drainage ditch on a highway for the State of Oklahoma. In performing the work, the company failed to erect any warning signs or barriers. The State, however, accepted the company’s work. Seven months later, a plaintiff was injured when she drove into the ditch.

[¶ 21.] The Oklahoma Supreme Court held that the State’s action, in maintaining the road in a dangerous condition after it accepted the company’s work, constituted an intervening [superseding] cause. Id. at 1066. The court phrased the question, “Mould the [construction company] have reasonably anticipated that the State Highway Department would permit the public to use this road in its dangerous condition without erecting some form of warning signals or barriers?” Id. The court answered that it was not foreseeable that the State would neglect its duty to the extent of allowing the public to travel on the road in its dangerous condition beyond whatever time it would take to remedy such condition. Id. at 1067. The court concluded, “[w]e do not think reasonable [minds] would differ on this question. We hold that ... it could not have been reasonably anticipated that the State Highway Department would permit public travel over this road for a period of seven months without ever taking precautions to guard against accidents ....” Id.

[¶ 22.] In Goar v. Village of Stephen, 157 Minn. 228, 196 N.W. 171 (1923), the Minnesota Electric Distributing Company contracted with Village of Stephen (Village) to construct an electric transformer pole. When the project was completed, the company turned it over to the Village. The contract between those parties, like the statutes in this case, expressly imposed responsibility upon the governmental entity for inspection, care, and maintenance. Village, however, did nothing to inspect or maintain the pole. Over seventeen months later, it was discovered that through the negligence of the company, two wires on the pole were set too close together. As a result, high winds caused the wires to rub together, and the insulation began to wear. When the insulation on the wires had finally worn through, an electrical current of 2300 volts transmitted over a telephone wire to a plaintiff who was using a phone.

[¶ 23.] The Minnesota Supreme Court held that the company was not liable for its negligence. Id. at 236. The court stated, “[i]f the [c]ompany is liable in this case, there is no rule of law which would prevent the same result were the accident to occur ten years later.” Id. The court elaborated, “... the negligence of the Village was an independent producing agency of such character, that it broke the causal connection between the negligence of the company and plaintiffs injury....” Id. at 237. The court held that where there has been an extended lapse of time, and a failure to perform an affirmative duty on the part of the Village, but for which the accident would not have occurred, the Village’s failure to perform becomes the proximate cause. Id. at 241.

[¶ 24.] In this case, no injury occurred between the time of T-Lakota’s and Rozell’s alleged negligence and the time Township reinstalled the sign. When Rozell returned to fix the sign, he found that Township had already undertaken its statutory duties and had reinstalled it. At this point, neither Rozell nor T-Lakota had any reason to foresee that Township had performed their duty in an allegedly negligent manner. Approximately three weeks after Township completed its statutory duty to reinstall the sign, Braun drove his Suburban into the washout. If Rozell or T-Lakota were liable in such a case, nothing would prevent them from being liable if the accident were to occur ten years later. We hold that the lapse of time, the independent statutory duty of Township to erect guards and maintain an appropriate sign, and the affirmative performance of that duty in an allegedly negligent manner were superseding causes that relieved T-Lakota and Rozell of liability for their alleged negligence. Under these circumstances, liability for the breach of duty to Braun shifted to the Township. Summary judgment was properly granted.

[¶ 25.] Affirmed.

[¶ 26.] GILBERTSON, Chief Justice, and AMUNDSON, and KONENKAMP, Justices, concur.

[¶ 27.] SABERS, Justice, dissents.

SABERS, Justice

(dissenting).

[¶ 28.] I dissent. The majority opinion holds that the conduct of Township in improperly reinstalling the warning sign was an intervening superseding cause precluding a finding of negligence and relieving Rozell and T-Lakota from any liability. In reaching this result, the majority opinion incorrectly relies on Restatement (Second) of Torts § 452(2).

[¶ 29.] Section 452(2) is an exception to the general rule of § 452(1) that “the failure of a third person to act to prevent harm to another threatened by the actor’s negligent conduct is not a superseding cause of such harm.” (emphasis added). The exception provides: “Where, because of a lapse of time or otherwise, the duty to prevent harm to another threatened by the actor’s negligent conduct is found to have shifted from the actor to a third person, the failure to the third person to prevent such harm is a superseding cause.” The lapse of time may shift the duty and liability for any injury to the third person and may relieve the original actor of any liability. § 452(2) cmt. d. However, the general rule of § 452(1) should apply under these circumstances, not the exception.

[¶ 30.] The lapse of time between Ro-zell and T-Lakota’s conduct and Township’s conduct is not so significant as to relieve Rozell and T-Lakota of all liability as a matter of law. The majority opinion’s statement that: “If Rozell or T-Lakota were liable in such a case, nothing would prevent them from being liable if the accident were to occur ten years later[ ]” goes too far. The three-week lapse in time between the reinstallation of the sign and Braun’s accident is not so long as to necessarily render any future injuries unforeseeable. Additionally, the independent statutory duty of Township to maintain appropriate signs cannot completely relieve Rozell and T-Lakota of all liability for their negligent conduct. The intervening act of Township, reinstalling the sign, does not “so entirely supersede the operation of [Rozell and T-Lakota’s] negligence that it alone, without [their] negligence contributing thereto, produces the injury.” Schmeling v. Jorgenson, 77 S.D. 8, 18, 84 N.W.2d 558, 568 (1957) (citation omitted). The conduct of Rozell, T-Lakota and Township operated concurrently to produce the harm suffered by Braun.

[¶ 31.] Furthermore, this Court has stated: “[N]egligence, to render a person hable, need not by the sole cause of injury, but it is sufficient that his negligence concurring with one or more efficient negligent acts of third persons, is a proximate cause of the injury.” Schmeling, 77 S.D. 8 at 19, 84 N.W.2d at 564 (additional citations omitted). As a matter of law, Rozell and T-Lakota are not entitled to summary judgment. It is a question for the jury to determine whether the lapse of time is sufficient to relieve others of liability and I would reverse so that a jury could determine the liability of Rozell and T-Lakota.

      . Any dispute about the facts of the accident may be material to Braun's alleged contributory negligence, but that dispute is not material to the issue of duty.

      . See State v. Lamont, 2001 SD 92, 631 N.W.2d 603; State v. Two Bulls, 1996 SD 53, 547 N.W.2d 764; Fenner v. Trimac Transp., Inc., 1996 SD 121, 554 N.W.2d 485; Small v. McKennan Hosp., 437 N.W.2d 194 (S.D.1989); Johnson v. Straight's, Inc., 288 N.W.2d 325 (S.D.1980); Grant v. Matson, 68 S.D. 402, 3 N.W.2d 118 (1942); Fletcher v. South Dakota Cent. Ry. Co. et al., 36 S.D. 401, 155 N.W. 3 (1915).

      . Although the Minnesota Supreme Court phrased the issue in terms of causation, "duty” and "causation” are often used interchangeably. In any event, the result is the same whether the issue is phrased in terms of “duty” or "causation.”

      . T-Lakota argues that Rozell's assurance to Backman that Rozell would reinstall the sign was also a superseding cause. Responsibility may be shifted by an agreement between the original actor and a third person. Restatement at § 452(2) cmt. e. The Restatement’s illustration is apposite:
      A is one of a crew of workmen employed by a construction company to excavate a trench in the public highway. One of A's duties, at the close of a day's work, is to set out barriers and warning flares for the protection of travelers on the highway. A forgets to do so before going home at the end of the day. When halfway home he remembers, and returns to the scene, intending to make good his neglect. There he meets B, the foreman of the company, who tells him to go on home, promising that he, B, will look after the barriers and flares. A goes home. B in turn forgets, and the trench is left without guard, lights, or warning. During the night C, a traveler on the highway, drives into the trench and is injured. A is not liable to C.

        Id. § 452(2) illus. 5. We agree that, as between T-Lakota and Rozell, the responsibility shifted to Rozell.