Physicians Plus v. MIDWEST MUT.

• Decision Date: 28 June 2002
• Docket Number: No. 00-1836.,00-1836.
• Citation: 646 N.W.2d 777,254 Wis.2d 77,2002 WI 80
• Parties: PHYSICIANS PLUS INSURANCE CORPORATION, Subrogated-Plaintiff-Respondent, v. MIDWEST MUTUAL INSURANCE COMPANY, Defendant, THERESA MUTUAL FIRE INSURANCE COMPANY, Donald Franke, Wisconsin Municipal Mutual Insurance Company, Dodge County, Robert Embertson, Rural Mutual Insurance Company, Township of Leroy and Linus Schraufnagel, Defendants-Appellants-Petitioners. ESTATE OF Timothy J. SMITH, Deceased, Plaintiff-Respondent, STATE of Wisconsin, Department of Health and Family Services, Division of Health, Subrogated-Plaintiff-Respondent, v. THERESA MUTUAL INSURANCE COMPANY, Don-Er Farms, Inc., Donald Franke, Ermanelda Franke, Wisconsin Municipal Mutual Insurance Company, Dodge County, Robert Henken, Highway Commissioner for Dodge County, Robert Embertson, Rural Mutual Insurance Company, and Township of Leroy, Defendants-Appellants-Petitioners.
• Court: Wisconsin Supreme Court

254 Wis.2d 77

2002 WI 80

646 N.W.2d 777

PHYSICIANS PLUS INSURANCE CORPORATION, Subrogated-Plaintiff-Respondent, v. MIDWEST MUTUAL INSURANCE COMPANY, Defendant, THERESA MUTUAL FIRE INSURANCE COMPANY, Donald Franke, Wisconsin Municipal Mutual Insurance Company, Dodge County, Robert Embertson, Rural Mutual Insurance Company, Township of Leroy and Linus Schraufnagel, Defendants-Appellants-Petitioners.

ESTATE OF Timothy J. SMITH, Deceased, Plaintiff-Respondent,

STATE of Wisconsin, Department of Health and Family Services, Division of Health, Subrogated-Plaintiff-Respondent, v. THERESA MUTUAL INSURANCE COMPANY, Don-Er Farms, Inc., Donald Franke, Ermanelda Franke, Wisconsin Municipal Mutual Insurance Company, Dodge County, Robert Henken, Highway Commissioner for Dodge County, Robert Embertson, Rural Mutual Insurance Company, and Township of Leroy, Defendants-Appellants-Petitioners.

No. 00-1836.

Supreme Court of Wisconsin.

Oral argument January 9, 2002.

Decided June 28, 2002.

For defendants-appellants-petitioners, Theresa Mutual Insurance Company, Don-Er Farms, Inc., Donald Franke and Ermanelda Franke, there were briefs by Arnold P. Anderson and Mohr & Anderson, S.C., Madison, and Thomas E. Goss, Jr. and Mueller, Goss & Possi, S.C., Milwaukee, and oral argument by Arnold P. Anderson and Thomas E. Goss, Jr.

For defendants-appellants-petitioners, Dodge County, Robert Embertson, Wisconsin Municipal Insurance Company and Robert Henken, there were briefs by Robert E. Storck and Storck, Schnabl & Madden, Mayville, and oral argument by Robert E. Storck.

For defendants-appellants-petitioners, Township of Leroy, Linus Schraufnagel and Rural Mutual Insurance Company, there were briefs by Phillip J. Eckert and O'Meara Law Form, LLP, West Bend, and oral argument by Phillip J. Eckert.

For plaintiff-respondent, Timothy J. Smith, there was a brief by Eric A. Farnsworth and DeWitt Ross & Stevens, S.C., Madison, and oral argument by Eric A. Farnsworth.

¶ 1. N. PATRICK CROOKS, J

This is a review of a published opinion of the court of appeals, Physicians Plus Insurance Corp. v. Midwest Mutual Insurance Co., 2001 WI App 148, 246 Wis. 2d 933, 632 N.W.2d 59, affirming the order of the Dodge County Circuit Court granting partial summary judgment in favor of Timothy J. Smith. The circuit court and the court of appeals both concluded that the petitioners were liable for maintaining a public nuisance, consisting of tree branches obstructing the view of a stop sign at a highway intersection. Each petitioner, Theresa Mutual Insurance Company, Don-Er Farms, Inc., Donald and Ermanelda Franke, (hereinafter collectively referred to as "the Frankes" or "the homeowners"); Wisconsin Municipal Mutual Insurance Company, Dodge County, Robert Henken, Highway Commissioner for Dodge County, Robert Embertson (hereinafter collectively referred to as "Dodge County"); and Rural Mutual Insurance Company and the Township of Leroy, (hereinafter collectively referred to as the "Town of Leroy"), individually claims it is excluded as a matter of law, from liability for failing to remove the tree branches obstructing the view of a stop sign. [1]

¶ 2. We begin reviewing this case by discussing the important, but often confusing, relationship between public nuisance and negligence. Both the circuit court and the court of appeals held that the defendants were liable for maintaining a public nuisance. We begin our analysis by defining public nuisance as a condition or activity which substantially or unduly interferes with the use of a public place or with the activities of an entire community. See Schiro v. Oriental Realty Co., 272 Wis. 537, 546, 76 N.W. 355 (1956)

; see also State v. Quality Egg Farm, Inc., 104 Wis. 2d 506, 520, 311 N.W.2d 650 (1981) (noting that the court considers many factors in concluding that a public nuisance exists).¹ We then discuss this court's decision in Brown v. Milwaukee Terminal Railway Co., 199 Wis. 575, 224 N.W. 748, on reargument, 199 Wis. 588, 227 N.W. 385 (1929), which we conclude provides the proper framework for determining liability here. We work to clarify the relationship between public nuisance and negligence and hold that liability for maintaining a public nuisance is based on the following elements, plus public policy. First, the existence of the public nuisance itself; second, actual or constructive notice of the public nuisance; and third, that the failure to abate the public nuisance is a cause of the plaintiffs injuries. For the purposes of comparing and apportioning responsibility for the accident and for determining contribution among culpable parties, we conclude that when all of those elements are affirmatively proven, a defendant's failure to abate a public nuisance is analogous to negligence per se. We also look to public policy considerations because we conclude that similar to liability for negligence, liability for maintaining a public nuisance can be limited on public policy grounds.

¶ 3. Applying this framework to the facts presented here, we conclude that the circuit court properly concluded that the tree branches obstructing the view of the stop sign resulted in a public nuisance as a matter of law. We conclude from the photographic evidence depicting the tree and the stop sign on the date of the accident, that there are no genuine issues of material fact to preclude a summary judgment determination that the condition was a public nuisance. Furthermore, we conclude that there are no genuine issues of material fact regarding whether all three defendants had actual or constructive notice of the condition. The tree branches were obstructing the view of the stop sign for at least two to three months before the accident, and this is a sufficient length of time to impute notice to the Frankes, Dodge County, and the Town of Leroy. Regarding whether the failure to abate the obstructed view of the stop sign was a cause of the accident, we affirm the court of appeals' conclusion that disputed reasonable inferences preclude summary judgment on that issue. We further conclude, however, that if causation is established at trial, for the purposes of comparing and apportioning responsibility and for determining contribution among culpable parties, a defendant's failure to abate the public nuisance is analogous to negligence per se.

¶ 4. We then turn to each individual defendant's arguments that public policy considerations relieve each of liability. We reject all of the defendants' public policy arguments and conclude that the Frankes, Dodge County and the Town of Leroy all had a relationship to either the tree involved or the stop sign at issue that resulted in a duty to abate the public nuisance—to trim the branches obstructing the view of the stop sign. We further conclude that public policy does not relieve any of the defendants of liability.²

I. FACTS

A. The accident

¶ 5. For the purposes of this case, the pertinent facts are not in dispute. On July 21, 1996, Timothy J. Smith (hereinafter Smith) and his passenger, Tracey Leistico (hereinafter Leistico), were injured in an accident at the intersection of Highway Z and Ledge Road, in the Town of Leroy, in Dodge County. Smith was driving his motorcycle north on Highway Z and Diane C. Smith (hereinafter Diane), of no relation to Timothy Smith, was driving her car eastbound on Ledge Road. There is a stop sign requiring traffic on Ledge Road to stop for traffic on Highway Z; however, Diane failed to stop and her vehicle collided with Smith's motorcycle. Diane stated that she failed to see the "stop ahead" sign and failed to stop for the stop sign because there were tree branches obstructing the visibility of the stop sign. Diane later admitted to drinking approximately four or five beers the day of the accident, that she had an open can of beer in her car, and that after the accident she removed full beer cans from her car and hid them in a culvert.

B. The tree and the stop sign

¶ 6. The tree at issue is located on Donald and Ermanelda³ Frankes' property and is partially within the Town of Leroy's highway right-of-way. The day after the accident, Town of Leroy personnel inspected the tree branches and decided to remove them. Linus Schraufnagel, the Frankes' neighbor and Town of Leroy Chairman, and one of the homeowners, Donald Franke, subsequently trimmed the branches at issue.

¶ 7. The stop sign requiring traffic to stop on Ledge Road was installed by Dodge County and is within the County's right-of-way. Highway Z is an arterial highway. The speed limit on both Highway Z and Ledge Road is 55 miles per hour. ¶ 8. Although not aimed at checking for foliage obstruction, Dodge County personnel checked the visibility of signs in the county on an annual basis. The purpose of the inspection was to determine the reflectivity of county signs and was usually done at night in November. In addition to the county inspection, Town of Leroy personnel inspected all of its roads and ensured its stop signs were in good condition in April of each year. The town, however, also does not inspect specifically for obstruction of stop signs.

C. Trial Court proceedings

¶ 9. Following the accident, Smith and his passenger, Leistico, filed separate actions in Dodge County Circuit Court for injuries resulting from the collision with Diane Smith. The plaintiffs both filed suit against the Frankes, the Town of Leroy and Dodge County,⁴ claiming that all were either actually or constructively aware of the developing hazard and all were negligent in failing to take action to remedy the hazard, including trimming the branches of the tree obstructing the view of the stop sign. Smith also claimed that the Frankes' maintenance of their tree constituted a nuisance to the safe and unobstructed use of the highway. For purposes of pretrial administration and trial, the two cases were consolidated.

¶ 10. All three defendants, the Frankes, the Town of Leroy, and Dodge County, moved for...