(dissenting in part).
I join the majority in affirming the summary judgment in favor of the Board of Education. I would reverse the summary judgment as to Herkenhoff.
The defendant Herkenhoff was employed to design the construction of the culvert in question. Gordon Herkenhoff, president of defendant Herkenhoff, testified in his deposition that he gave no consideration to silt in designing the structure. Fred Denny, an engineer was associated with the defendant Herkenhoff. Denny testified in his deposition that he participated in the design for Herkenhoff, that he did take sedimentation into consideration and that he attempted to provide a sufficient velocity through the culvert to make it self-cleaning when operative. According to Denny, any debris in the culvert at the beginning of the storm runoff was “transported out” by the flow.
However, an affidavit submitted on behalf of plaintiff indicates the culvert was partially obstructed during the flow so that water came out at about half the rate it would have if the culvert had been unobstructed.
Accordingly, there is an issue of fact (a) as to whether defendant Herkenhoff did design the culvert to be self-cleaning and (b) if so, whether the self-cleaning aspect was properly designed.
If the culvert’s self-cleaning feature was improperly designed, there is a causation question. Would plaintiff’s damage have resulted even if the culvert had been properly designed? Gordon Herkenhoff testified that if the culvert was half plugged up, it would make a considerable difference.
Defendant Flerkenhoff had the burden of showing there was no material question of fact on the self-cleaning and causation issues. It failed to do so. Summary judgment should have been denied on this basis.
Being of the opinion that there were factual issues which defeated a summary judgment in favor of defendant Herkenhoff, I express no opinion on whether the trial court properly refused to consider the two reports offered by plaintiff.
The majority feeling otherwise, I dissent.