HIGHWAYS ‑- CATTLE‑CROSSING SIGNS ‑- COUNTIES

HIGHWAYS ‑- CATTLE‑CROSSING SIGNS ‑- COUNTIES.

A county has authority to post signs at cattle crossings, but is not liable for failure to continuously maintain them.

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                                                                   June 14, 1954

Honorable Tom A. Durham
Prosecuting Attorney
Whatcom County
Court House, 311 Grand Avenue
Bellingham, Washington                                                                                                 Cite as:  AGO 53-55 No. 271

Attention:  Mr. Jack Rowles, Deputy Prosecutor

Dear Sir:

            By letter as previously acknowledged, you have requested the opinion of this office on questions arising from the following situation: The county commissioners contemplate posting cattle crossing warning signs on county roads to give notice to motorists of places where cattle must be moved across the right of way to pasture or to the barn.  None of these places are within range areas.  It is possible that such signs might be removed or destroyed by unauthorized persons, and that a motorist might be injured by collision with cattle prior to their replacement by the county.

            You ask:  (1) If the commissioners have authority to post such signs; and (2) If the county would be responsible in damages to a motorist injured in the circumstances described if a sign were not replaced as soon as possible by the county.

            It is our opinion:

            (1) That the commissioners do have authority to place such signs; and

             [[Orig. Op. Page 2]]

            (2) That the county is not liable in tort for a failure to replace such sign as soon as possible, but in any event, this liability is no greater than in a case where no sign has been erected in the first instance.

                                                                     ANALYSIS

            The power, or duty, to maintain traffic regulative devices on county roads is given to a county by RCW 36.86.040:

            "The board shall erect and maintain upon the county roads such suitable and proper signs, signals, signboards, and guideposts and appropriate stop, caution, warning, restrictive, and directional signs and markings as it deems necessary or as may be required by law.  All such markings shall be in accordance with the uniform state standard of color, design, erection, and location adopted and designated by the director."

            The general provisions of this statute are undoubtedly broad enough to allow the posting of "cattle crossing" signs.

            It should be noted that this statute does not require that any particular signs be posted, but leaves the question of their propriety to the discretion of the county commissioners.  We are not able to find any other law imposing a positive duty upon the county to maintain such signs, nor are we able to find any such duty imposed by the decided cases.

            Our court has recognized that a county owes a general duty to the public to properly maintain its streets and roadways.  See for instanceGray v. King County, 140 Wash. 169, 248 Pac. 397, or Lyle v. Fiorito, 187 Wash. 537, 60 P. (2d) 709.  And it has been held that this duty includes the proper maintenance of traffic regulating devices.  Fritch v. King County, 4 Wn. (2d) 87, 102 P. (2d) 249.

            It was said in the recent case of Bradshaw v. Seattle, 43 Wn. (2d) 766, at page 775, however:

            "(5) In the absence of an express statute, a municipality cannot be held liable for failure to erect  [[Orig. Op. Page 3]] warning signs or barriers to apprise travelers of extraordinary or unusual conditions unless the danger existed in the highway itself."  (Emphasis supplied)

            See alsoPhinney v. Seattle, 34 Wn. (2d) 330, 208 P. (2d) 879.

            It seems that since there is no positive statute requiring the maintenance of cattle crossing signs, and since such a crossing is not a danger in the highway itself, a county would not be liable for the failure to maintain such signs.

Very truly yours,

DON EASTVOLD
Attorney General

KEITH S. BERGMAN
Assistant Attorney General