Bronfeld v. Pember Companies, Inc.

• Decision Date: 05 October 2010
• Docket Number: No. 2009AP2297.,2009AP2297.
• Citation: 792 N.W.2d 222,330 Wis.2d 123,2010 WI App 150
• Parties: Beverly BRONFELD and Stewart Bronfeld, Plaintiffs-Appellants,FN† FN† Petition for Review denied Feb. 7, 2011.v. PEMBER COMPANIES, INC. and West Bend Mutual Insurance Company, Defendants-Respondents, United States Centers for Medicare and Medicaid Services, Defendant.
• Court: Wisconsin Court of Appeals

330 Wis.2d 123 792 N.W.2d 222 2010 WI App 150 Beverly BRONFELD and Stewart Bronfeld, Plaintiffs-Appellants,^FN† FN† Petition for Review denied Feb. 7, 2011.v. PEMBER COMPANIES, INC. and West Bend Mutual Insurance Company, Defendants-Respondents, United States Centers for Medicare and Medicaid Services, Defendant. No. 2009AP2297. Court of Appeals of Wisconsin. Submitted on Briefs Sept. 14, 2010. Opinion Filed Oct. 5, 2010.

On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of C.M. Bye and Martha H. Heidt, of Bye, Goff & Rohde, Ltd., River Falls.

On behalf of the defendants-respondents, the cause was submitted on the brief of Patrick G. Heaney of Thrasher, Pelish, Franti & Smith, Ltd., Rice Lake.

Before HOOVER, P.J., PETERSON and BRUNNER, JJ.

PETERSON, J.

¶ 1 Beverly and Stewart Bronfeld appeal from a summary judgment granted to Pember Companies, Inc., and its insurer. The Bronfelds allege Pember, a subcontractor working on a road construction project for the City of River Falls, negligently constructed barricades and safety signs and failed tomaintain a safe site for the public. The trial court granted summary judgment to Pember, concluding it was an "agent" of the city and was therefore entitled to governmental immunity. We agree that Pember is entitled to immunity and affirm.

BACKGROUND

¶ 2 During the summer of 2007, the City of River Falls began a construction project at the intersection of Main and Maple Streets. The project involved replacing signal lights, storm sewers, pavement,curb and gutter, and sidewalk. Monarch Paving was the general contractor for the project, and Pember was a subcontractor responsible for new sidewalks and crosswalks.

¶ 3 The city's engineer, Reid Wronski, along with other city employees, assembled a set of contracts and specifications for the project. Among these documents was a project manual, which contained all the specifications for the project. The project manual is over 250 pages long.

¶ 4 The project manual includes a nine-page section titled "Maintenance of Traffic," which contains detailed specifications related to quality assurance, site conditions, sequencing and scheduling, maintenance, equipment, preparation, operations, and traffic control. This section mandates the use of specific traffic control devices, signs, and barricades. The operations subsection specifies how these barricades and signs must be installed and provides further specifications for pedestrian and traffic access during the course of the project.

¶ 5 The project manual also mandates that the project be conducted in accordance with the Wisconsin Manual on Uniform Traffic Control Devices. The Wisconsin Manual contains standards pertinent to temporary traffic control and pedestrian safety practices.

¶ 6 In addition, the project manual requires the general contractor, Monarch, to submit a traffic control plan to the City of River Falls for approval. Monarch complied with this requirement. The traffic control plan submitted by Monarch specifies particular traffic control devices that must be used and where they must be placed. For instance, the traffic control plan mandates the use of Type III barricades "for road closed areas and to maintain a barrier between construction activity and the traveling public." It also calls for "sidewalk closed" signs on Type II barricades at all locations where the sidewalk has been removed. Wronski reviewed Monarch's traffic control plan, made revisions, and approved the revised plan.

¶ 7 The contract between Monarch and the City of River Falls incorporated the project manual. Pember did not have a contract with the city, but its contract with Monarch incorporated the terms of Monarch's contract with the city. The project manual and traffic control plan therefore applied to Pember, and Pember was contractually bound to follow them.

¶ 8 Sometime during the late summer or early fall of 2007, Pember began the concrete work at the intersection of Main and Maple Streets. Pember's work involved tearing out blacktop and laying down maroon-colored concrete in the crosswalk.

¶ 9 Monarch supplied the barricades for the project, and when Pember employees arrived at the site, they moved the barricades into place. As required by the traffic control plan, Pember employees placed one Type III barricade in the right southbound lane of Main Street to protect their work area and direct traffic away. Pember also placed a "sidewalk closed" sign on a Type II barricade at the edge of the sidewalk leading to the closed crosswalk. After pouring the concrete for the crosswalk, Pember covered its work with tarps andwaited seven days for the concrete to cure. Pember left all the barricades in place during this time.

¶ 10 On October 4, 2007, while Pember's concrete was curing, Beverly Bronfeld attempted to cross Main Street at the Main Street-Maple Street intersection. While walking "close" beside the closed crosswalk, Bronfeld tripped over the leg of the Type III barricade that Pember had put inplace to protect its work area. Bronfeld fell to the ground and sustained injuries.

¶ 11 Later that day, Wronski visited the accident scene with Bronfeld. Wronski thought the barricades were in their proper places, and he did not think the location of the Type III barricade was an obvious hazard. He had no criticism of the types of barricades Pember used or of the locations where Pember had placed them.

¶ 12 The Bronfelds subsequently filed suit against Pember and its insurer, alleging Pember negligently erected barricades and safety signs and failed to maintain a safe site for the public. The trial court granted Pember's motion for summary judgment, finding that, as an agent of the City of River Falls, Pember was entitled to governmental immunity pursuant to Wis. Stat. § 893.80(4).¹ The Bronfelds now appeal.

DISCUSSION

¶ 13 Whether a contractor is entitled to governmental immunity is a question of law that we review independently. Estate of Brown v. Mathy Constr. Co., 2008 WI App 114, ¶ 6, 313 Wis.2d 497, 756 N.W.2d 417. We also review a grant of summary judgment independently,applying the same standard as the trial court. Green Spring Farms v. Kersten, 136 Wis.2d 304, 315, 401 N.W.2d 816 (1987). Summary judgment is appropriate where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2); Green Spring Farms, 136 Wis.2d at 315, 401 N.W.2d 816.

¶ 14 Here, the Bronfelds contend summary judgment was inappropriate for two reasons. First, they argue this action involves a "highway defect" under Wis. Stat. § 893.83(1), which provides an exception to the general grant of governmental immunity under Wis. Stat. § 893.80(4). Second, they argue Pember is not entitled to immunity because it was not acting as an agent of the City of River Falls. We disagree with both arguments and affirm.

I. Wisconsin Stat. § 893.83(1)

¶ 15 The Bronfelds first argue this case falls under Wis. Stat. § 893.83(1), which is an exception to governmental immunity. Section 893.83(1) states, "If damages happen to any person or his or her property by reason of the insufficiency or want of repairs of any highway that any town, city, or village is bound to keep in repair, the person sustaining the damages has a right to recover the damages from the town, city, or village." If a plaintiff's claim is actionable under § 893.83(1), governmental immunity does not apply. Morris v. Juneau County, 219 Wis.2d 543, 559, 579 N.W.2d 690 (1998).²

¶ 16 The Bronfelds did not argue in the trial court that their claim involved a highway defect under Wis. Stat. § 893.83(1), and the trial court never ruled on this issue. Generally, we will not consider an issue raised for the first time on appeal. Evjen v. Evjen, 171 Wis.2d 677, 688, 492 N.W.2d 361 (Ct.App.1992). Byfailing to argue in the trial court that this action involved a highway defect under § 893.83(1), the Bronfelds forfeited their right to make this argument on appeal.

¶ 17 Furthermore, even if the Bronfelds had properly preserved this issue, the undisputed facts demonstrate this case does not involve an actionable highway defect. Wisconsin Stat. § 893.83(1) only applies to a small area of negligent conduct by a municipality, and in this area it does not necessarily cover all the negligence that might relate to highways. Morris, 219 Wis.2d at 557, 579 N.W.2d 690. The scope of negligence actionable under § 893.83(1) is limited to such matters as the structural and construction components of the road bed and surface. Dusek v. Pierce County, 42 Wis.2d 498, 505, 167 N.W.2d 246 (1969) (holding that § 893.83(1) does not encompass the failure to erect proper signs). Negligent placement of barricades and signs does not constitute "insufficiency" or "want of repairs" within the meaning of § 893.83(1). Weiss v. City of Milwaukee, 79 Wis.2d 213, 225, 227, 255 N.W.2d 496 (1977). Additionally, the alleged defect must exist on the "traveled" portion of the highway. Id. at 225, 255 N.W.2d 496.

¶ 18 Here, Bronfeld tripped over a Type III barricade used to keep the public out of Pember's work area. Her allegations of negligence relate to the placement of this barricade, which is not an actionable highway defect under Wis. Stat. § 893.83(1). See id. at 227, 255 N.W.2d 496. Furthermore, the crosswalk where Bronfeld tripped was closed. Thus, it is doubtful the crosswalk was in the "traveled" portion of the road. There was no "want of repair" because the traveling public was precluded from using the crosswalk while it was being reconstructed.

II. Governmental immunity under Wis. Stat. § 893.80(4)

¶ 19 Wisconsin Stat. § 893.80(4) immunizes local governments and their officers, employees, or agents from liability for acts involving the exercise of discretion or judgment. Lodl v. Progressive N. Ins. Co., 2002 WI 71, ¶¶ 20-21, 253 Wis.2d 323, 646 N.W.2d 314. We have previously held that sign placement is a discretionary duty....