Burg v. Cincinnati Cas. Ins. Co.

• Decision Date: 26 June 2002
• Docket Number: No. 00-3258.,00-3258.
• Citation: 254 Wis.2d 36,645 N.W.2d 880,2002 WI 76
• Parties: Karl A. BURG by his legal guardian, Gladys M. Weichert, Plaintiff-Appellant, v. CINCINNATI CASUALTY INSURANCE CO. and Robert W. Zimmerman, Defendants-Respondents-Petitioners.
• Court: Wisconsin Supreme Court

254 Wis.2d 36

2002 WI 76

645 N.W.2d 880

Karl A. BURG by his legal guardian, Gladys M. Weichert, Plaintiff-Appellant, v. CINCINNATI CASUALTY INSURANCE CO. and Robert W. Zimmerman, Defendants-Respondents-Petitioners.

No. 00-3258.

Supreme Court of Wisconsin.

Oral argument April 9, 2002.

Decided June 26, 2002.

For the defendants-respondents-petitioners there were briefs by Gregory J. Cook, Anthony P. Hahn and Kasdorf, Lewis & Swietlik, S.C., Wausau, and oral argument by Gregory J. Cook and Anthony P. Hahn.

For the plaintiff-appellant there was a brief by Victor C. Harding and Warshafsky, Rotter, Tarnoff, Reinhardt & Bloch, S.C., Milwaukee, and oral argument by Victor C. Harding.

An amicus curiae brief was filed by John T. Podbielski, Jr. and Schelble & Podbielski, S.C., Milwaukee, on behalf of Mothers Against Drunk Driving (MADD).

¶ 1. DIANE S. SYKES, J.

This case involves a serious snowmobile accident and requires us to determine the scope of the term "operate" for purposes of Wis. Stat. § 350.09, (1995-96)¹ a snowmobile safety statute that requires anyone who operates a snowmobile at night to illuminate the snowmobile's head and tail lamps.

¶ 2. The plaintiff Karl Burg was severely injured while snowmobiling at night. At the time of the accident, Burg was traveling on the graded, unfinished bed of new highway lanes under construction, which ran alongside an existing highway. The accident occurred when Burg swerved to avoid hitting another snowmobiler, who had, five minutes earlier, together with a companion, stopped and shut off his snowmobile on the same path Burg was using.

¶ 3. Before trial, Burg moved for a determination that the driver of the stopped snowmobile was negligent per se for violating Wis. Stat. § 350.09, which requires head and tail lamps to be illuminated when a snowmobile is operated at night, and Wis. Stat. § 346.51, which prohibits the parking, standing, or stopping of any vehicle upon a roadway. The circuit court denied the motion, concluding that a snowmobile completely stopped with its engine off was not being "operated" within the meaning of the head and tail lamp statute. The court further concluded that the statute prohibiting the parking, stopping, or standing of any vehicle upon a roadway did not apply, because the snowmobile was stopped some distance off the actual highway, on the unfinished roadbed of the additional lanes that were under construction.

¶ 4. The court of appeals reversed, concluding that the stopped snowmobile was being "operated" within the meaning of the head and tail lamp statute, because the act of stopping the snowmobile was sufficient to meet the statutory definition of "operate." We disagree. The snowmobile statutes define "operate" as "the exercise of physical control over the speed or direction of a snowmobile or the physical manipulation or activation of any of the controls of a snowmobile necessary to put it in motion." Wis. Stat. § 350.01(9r). This definition does not include merely sitting on a stopped snowmobile with the engine off. We also agree with the circuit court's conclusion that Wis. Stat. § 346.51 does not apply because a graded roadbed under construction does not constitute a "roadway" within the meaning of the statute. Accordingly, we reverse.

I

¶ 5. On the evening of November 29, 1995, two pairs of snowmobilers were traveling on a make-shift snowmobile trail in Racine County. Highway 36 was under re-construction—two lanes were being added to expand the existing two-lane highway into four lanes. The two new lanes under construction were graded and flat, making it a good place to run a snowmobile. The defendant Robert Zimmerman and his friend, Dean Leighton,² were snowmobiling on the unfinished new lanes. At approximately Highway 36 and Malchine Road, they stopped and shut off their snowmobiles, in the middle of the lane of snowmobile travel on the unfinished road bed.

¶ 6. Both snowmobiles were configured in such a way that when the sleds were turned off, the head lamps and tail lamps were extinguished and could not be re-illuminated until the engine was restarted. To restart the snowmobile, the ignition key had to be turned and a cord pulled.³

¶ 7. The plaintiff Karl Burg and his friend Robert Dros were also snowmobiling on the unfinished new lanes of Highway 36. Burg was in the lead, ahead of Dros by approximately 100 to 110 feet, and traveling between 35 and 40 m.p.h. They came to the location where Zimmerman and Leighton were sitting on their stopped, unilluminated snowmobiles, approximately five minutes after Zimmerman and Leighton got there. Dros saw Burg's brake light come on, his sled fishtail, and his brake light extinguish.

¶ 8. Burg evidently had not seen Zimmerman or Leighton until it was too late, swerved in an apparent effort to avoid hitting Zimmerman, and instead struck Leighton's sled. Either on impact or sometime thereafter, Burg's helmet came off. Burg was thrown into the air and landed approximately 40 feet from the point of impact. He suffered severe and permanent head injuries. Leighton, who was also thrown from his sled, was knocked unconscious. His helmet, however, remained secure, and he regained consciousness at the scene. ¶ 9. Burg sued Zimmerman, alleging that Zimmerman had been negligent in the operation and parking of his snowmobile. Prior to trial, Burg moved for an order declaring Zimmerman negligent per se for violating Wis. Stat. § 350.09(1) and (3). This statute generally sets forth the lighting requirements for a snowmobile. Subsection (1) requires that when operated during the hours of darkness, a snowmobile must have its head lamp and tail lamp illuminated. Wis. Stat. § 350.09(1). Subsection (3) imposes an additional requirement that the illuminated tail lamp be visible for 500 feet. Wis. Stat. § 350.09(3).

¶ 10. The Milwaukee County Circuit Court, the Honorable Michael Malmstadt, denied the motion. The circuit court noted that a boating statute requires boaters who are stopped in the water to show a light, see Wis. Stat. § 30.61(6), but said there was no similar statute for snowmobilers. Accordingly, the court reasoned that "[i]f the legislature had wanted to require people who stop and park somewhere with a snowmobile to have a light on it when it is stopped, they could have said so. They have said so with other vehicles such as boats . . . I guess there is no dispute that Mr. Zimmerman stopped his snowmobile and was sitting on it talking to another guy who also had a snowmobile, and they were sitting there. Sitting on it I don't believe under the law is operating it."

¶ 11. During the second day of the ensuing jury trial, Burg renewed his motion to have Zimmerman declared negligent per se for violation of Wis. Stat. § 350.09. In addition, Burg also asserted that Zimmerman was negligent per se for violating Wis. Stat. § 346.51, which prohibits stopping, standing, or parking a vehicle in a business or residential district upon the roadway of a highway. ¶ 12. The circuit court again denied the motion. "This statute, 346.51, is designed to protect people traveling on the roadway. You're trying to get it to say that they are negligent vis-à-vis snowmobilers who are traveling off the roadway . . . 55 feet from the roadway, the negligence of this statute in my view relates to people traveling on the roadway . . . [i]t doesn't relate to people traveling off the roadway." Judge Malmstadt also stuck to his earlier ruling that "operation" for purposes of the snowmobile head and tail lamp statute did not include the act of merely sitting on a parked snowmobile with its engine off: "Snowmobiles . . . in this state can be parked without a light, according to the law. Now that doesn't mean that parking it without a light on in the middle of the pathway used by other snowmobiles is not negligence. It's just not statutorily prohibited."

¶ 13. At the close of evidence, Burg again renewed his motion on the negligence per se issues, and the motion was again denied. The jury found Burg negligent and Zimmerman not negligent. Burg moved for a new trial, reiterating his negligence per se arguments, and also challenging the jury's damages award as perversely low. The motion was denied, and Burg appealed.

¶ 14. In a split decision, the court of appeals reversed the circuit court, concluding that Zimmerman was "operating" his snowmobile within the meaning of Wis. Stat. § 350.09 and 350.09(9r), and therefore was negligent per se.⁴ The court concluded that the definition of "operate" in Wis. Stat. § 350.01(9r) included "a person's actions in stopping a snowmobile and turning off its motor because, literally, such actions do `exercise physical control over the speed and direction' of the snowmobile." Burg v. Cincinnati Cas. Ins. Co., 2001 WI App 241, ¶ 10, 248 Wis. 2d 145, 635 N.W.2d 622. The court of appeals remanded the case for a new trial. We accepted review.

II

[1]

¶ 15. This case concerns the meaning of the term "operate" in Wis. Stat. § 350.01(9r) for purposes of the head and tail lamp illumination requirement of Wis. Stat. § 350.09. This is a question of statutory interpretation that we review de novo. Peterson v. Midwest Security Ins. Co., 2001 WI 131, ¶ 11, 248 Wis. 2d 567, 636 N.W.2d 727.

[2, 3]

¶ 16. "Statutory interpretation begins with—and, absent ambiguity, is confined to—the language of the statute," and statutory words and phrases, unless technical in nature or carrying a peculiar legal meaning, are construed according to common and ordinary usage. Fuchsgruber v. Custom Accessories, Inc., 2001 WI 81, ¶ 10, 244 Wis. 2d 758, 628 N.W.2d 833; Peterson, 2001 WI 131, ¶ 19. See also, Wis. Stat. § 990.01(1).

¶ 17. The snowmobile head and tail lamp statute, Wis. Stat. § 350.09, provides:

Head lamps, tail lamps and brakes, etc. (1) Any snowmobile operated during the hours of darkness or operated during daylight hours on any highway right-of-way shall display a lighted head lamp and tail

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