(concurring in part, dissenting in part).
I concur with that portion of the majority’s opinion holding the trial court properly granted summary judgment as to appellant’s counts alleging negligence, nuisance, and strict liability. However, I dissent as to the balance of the majority opinion.
The majority holds the widening and deepening of the ditch in 1978 by the township creates a genuine issue of material fact as to whether the Country Club Road was “out of repair.”
In my opinion, the deepening and widening is a part of the design or plan of the road. Moreover, the township is not liable for negligent construction, maintenance, or repair of the road. Jensen v. Hutchinson County, 84 S.D. 60, 166 N.W.2d 827 (1969); Dohrman v. Lawrence County, 82 S.D. 207, 143 N.W.2d 865 (1966); Reaney v. Union County, 69 S.D. 392, 10 N.W.2d 762 (1943). I would affirm on this issue.
The roadway and ditch were owned and under the control of the township. The railroad’s property paralleled the road at the point of the accident. The ditch had been constructed in 1973 by the railroad, working with the township, to provide draining. In 1978, the drainage ditch was cleaned out by a contractor hired by the township. Some of the dirt was piled on the railroad’s property.
Plaintiff claims the railroad is liable under Restatement (Second) of Torts § 368 (1966). The Restatement of Torts recognizes that one who creates or permits an excavation to remain on his land so near an existing highway that he realizes or should realize it involves an “unreasonable risk” to others accidentally brought into contact with the excavation while traveling “with reasonable care upon the highway,” is liable to persons traveling on the highway, or who “foreseeably deviate from it in the ordinary course of travel.”
*481The criterion for application of this rule include that plaintiff be one of “those who reasonably and expectably deviate from the highway and enter upon the abutting land in the ordinary course of travel,” and that there be an entry upon the abutting land, in this case the railroad’s property. Restatement (Second) of Torts § 368, Comment e.
This Restatement rule was discussed and its application explained in Kimball v. City of Sioux Falls, 71 S.D. 35, 41, 20 N.W.2d 873, 875 (1945). We said:
When a motor driven vehicle becomes defective or unmanageable, or has gotten out of the control of the driver, or when such vehicle is driven recklessly, or when the driver becomes negligent, and an accident results which was not brought about by some defects in the condition of the highway, such accident is not an incident to ordinary travel, does not happen as a result of the ordinary use of the highways, but is classed as an unusual and extraordinary occurrence, (citations omitted)
In my opinion, the failure of the driver (Lancaster) to keep the bus on the roadway was an unusual and extraordinary occurrence which the railroad was not expected to anticipate or guard against. I would also affirm the trial court on this issue.