dissenting: I respectfully dissent. I believe there are enough disputed facts to deny summary judgment and allow a determination of causation by a jury. I would reverse and remand for a trial.
The majority opinion agrees that KDOT was negligent in the maintenance of the stop ahead sign. KDOT does not dispute that the sign was obscured by vegetation. The only issue then, according to the majority, is whether that breach of duty established causation. In my view, this question alone takes it out of the realm of summary judgment. Causation, like negligence, is determined by a jury. St. Clair v. Denny, 245 Kan. 414, 417, 781 P.2d 1043 (1989).
A determination of the presence or absence of negligence should be left to the trier of fact. See Stetler v. Fosha, 9 Kan. App. 2d 519, 522, 682 P.2d 682, rev. denied 236 Kan. 877 (1984). “The persuasiveness of testimony is for the jury’s consideration; not this court on appeal.” Stucky v. Johnson, 213 Kan. 738, 739, 518 P.2d 937 (1974).
Lay cites Toumberlin v. Haas, 236 Kan. 138, Syl. ¶ 2, 689 P.2d 808 (1984), where the plaintiffs were injured when two vehicles collided at the intersection of two low-volume county roads. The intersection was not controlled by any type of traffic control device. The plaintiffs presented no evidence that signs of any type were legally required under the Manual on Uniform Traffic Control Devices. The county engineer testified that both of the roads were low-volume roads, which, in his judgment, did not justify or require any type of traffic control sign. At the close of evidence, the trial court ruled that the county’s duty to place warning signs at the intersection was discretionary under the Kansas Tort Claims Act (KTCA), effective July 1, 1979, and, therefore, the county was not hable to plaintiffs for damages.
On appeal, the Supreme Court discussed the question of what duty the State bears since the passage of the KTCA. The Toumberlin court held: “Although the statutory liability of the state, counties and townships for defects in highways was repealed by the Tort Claims Act, a duty to maintain the highways remains under the general liability for negligence created by the Act.” 236 Kan. 138, Syl. ¶ 2.
*219With regard to KDOT’s notice of the obstructed stop ahead sign, the record contains deposition testimony from KDOT’s workers that they reset the stop ahead sign in question approximately 1 to 3 weeks before Lay’s accident. Lay cites Rollins v. Kansas Dept. of Transportation, 238 Kan. 453, 458, 711 P.2d 1330 (1985), where the court stated: “[I]n doing highway maintenance work, the duty under the tort claims act, absent any statutory exceptions, which KDOT owes the public is the same that would be required of a private individual or contractor doing the same work.”
Lay argues it is obvious that the KDOT employees who reset the sign did not act with due care when they inspected/repaired the sign because it was completely covered by weeds and vegetation, as demonstrated by pictures taken the day following the accident.
The precise question before this court is not whether a trier of fact would find causation but whether it was proper for the trial judge to rule on the causation issue. Here, the trial court had before it an affidavit of the plaintiff which was part of his response to the motion for summary judgment. The affidavit states in part:
“Since my accident, I have reviewed many documents regarding my accident, including the following:
“3. A night video of County Road 142 that was taken during the summer of 1993 by my brother while I was in a car with him. This night video partially depicts what I saw on the night of my September 30,1992 accident on County Road 142. This video dramatically shows that a Stop Ahead sign can easily be seen at night on County Road 142 if the sign is not covered by vegetation. I could easily see the Stop Ahead sign during the summer of 1993 while I was a passenger in my father’s car going west on County Road 142 the same direction I was going at the time of my accident.
“Prior to September 30,1992,1 knew a Stop Ahead sign meant there was some type of obstruction before the Stop sign. When I saw a Stop Ahead sign before my accident, I would always slow down and look for the obstruction and the Stop sign.
“Prior to my accident, I had never been involved in any type of accident as a driver, nor had I ever received any type of traffic citation.
“If the Stop Ahead sign was not covered by trees and weeds on September 30, 1992, then I know I would have slowed down, after I saw the sign, and would have seen the obstruction (the curve) without any problem.”
*220The district court’s granting of summary judgment to KDOT on the issue of causation is equivalent to a ruling that either no evidence was presented on causation or that causation was undisputed and that reasonable persons could not draw differing inferences and arrive at opposing conclusions. See Sampson v. Hunt, 233 Kan. 572, 578, 665 P.2d 743 (1983). Clearly, causation was disputed. Since the district court’s ruling can only be based on the lack of presentation of causation evidence, the district court’s decision, in my view, is not supported by the record and must be reversed.
KDOT states the record contains no evidence that as a matter of traffic engineering judgment: (1) a warning was needed for the curve; (2) a separate curve warning was not needed for the curve; (3) Jackson County did not place a curve warning sign because of the stop ahead sign; or (4) the presence of a stop ahead sign would have affected the decision one way or the other.
It would seem to follow logically that the necessity of using a stop ahead sign arises because the stop sign is either obstructed from the driver’s view or placed in such a location so as not to be visible from a long enough distance for the ordinary driver to reduce his or her speed when approaching the stop sign. It is uncontested here that it was KDOT’s duty to place a sign warning of a stop sign ahead. The question which a jury should have the opportunity to decide is whether the obstruction of that stop ahead sign became the cause of the accident.
I would reverse and remand for a trial.