Chart v. Dvorak

• Citation: 203 N.W.2d 673,57 Wis.2d 92
• Decision Date: 30 January 1973
• Docket Number: No. 308,308
• Parties: Penelope E. CHART, a minor, by her gdn. ad litem, Richard E. Sommer, Respondents. v. Carl J. DVORAK et al., Appellants.
• Court: United States State Supreme Court of Wisconsin

Page 673

203 N.W.2d 673

57 Wis.2d 92

Penelope E. CHART, a minor, by her gdn. ad litem, Richard E Sommer, Respondents. v. Carl J. DVORAK et al., Appellants.

No. 308.

Supreme Court of Wisconsin.

Jan. 30, 1973.

Hearing Denied March 27, 1973.

Robert W. Warren, Atty. Gen., Benjamin Southwick, Asst. Atty. Gen., Madison, for appellants.

Curtis M. Kirkhuff, Madison, Richard E. Sommer, gdn. ad litem, Rhinelander, for respondent.

WILKIE, Justice.

Three issues are presented by this appeal:

1. Are appellants Dvorak and Varekois proper parties defendant?

2. If, as a matter of law, a highway warning sign located in conformance with the State Highway Commission's directives is reasonable, is there nevertheless a question of fact concerning the placement of that sign so that the trial court properly denied appellants' motion for summary judgment?

3. May appellants be properly proceeded against for a highway warning sign which was improperly placed by their staff?

Proper Parties Defendant.

Appellants first argue that they are the wrong parties, because they had no role in the actual placement of the highway warning signs and they did not supervise such placement. The proper parties, they assert, are those state employees, members of the sign crew, who actually dug the hole and implanted the sign pole.

Respondent, citing Truesdill v. Roach, ³ argues that appellants waived this objection by not demurring to the complaint. However, sec. 263.11, Stats., permits objection to those demurrable defects outlined in sec. 263.06 to be made in an answer. This they did and accordingly their objection was not waived.

However, we find no merit in the contention of appellants that they are not the proper parties defendant. According to the State Highway Commission description of Dvorak's job, entitled 'Guide for District Chief Maintenance Engineer,' his designated function was:

'. . . advising and assisting the district engineer; with the supervision of maintenance, traffic, and waysides and landscaping work, including bringing about standard practices, performance, and results in maintenance operations, signing and marking of highways, and waysides and landscaping; and with related services in the district.' (Emphasis added.)

More specifically, Dvorak's 'operations and activities' were designated to be:

'6. He will supervise and direct the execution of all maintenance, traffic, and waysides and landscaping improvement work, ensuring that all contracts, agreements, and special provisions are carried out in accordance with approved policies and procedures.

'. . .

'8. He will maintain overall responsibility for the district sign shop, highway marking and signing, and related traffic activities.' (Emphasis added.)

As the district chief maintenance engineer, Dvorak's responsibility and authority were stated to be:

'* * * is responsible for and has commensurate authority to accomplish the fulfillment of the duties set forth below. He may delegate to members of his staff appropriate portions of his responsibilities, together with proportionate authority for their fulfillment, but he may not delegate or relinquish his overall responsibility for results, nor any portion of his accountability.' (Emphasis added.)

As the district traffic supervisor, Varekois' employment functions and responsibilities were similarly designated by the State Highway Commission. His function was 'the immediate supervision of traffic activities and related services in the district.' (Emphasis added.) His specific operations and activities included:

'1. He will provide immediate supervision and direction of traffic engineering activities in accordance with approved policies and procedures.

'2. He will supervise the sign shop and the signing and marking programs.

'. . .

'4. He will supervise the installation and maintenance of signs and traffic control devices.' (Emphasis added.)

As with Dvorak, his immediate superior, Varekois' authority and accountability for results were not delegable to his subordinates.

We conclude that the proper parties defendant must be determined by the nature of the operative facts constituting the invasion complained of. ⁴ The alleged wrongful act here is an insufficient warning of a known highway hazard. As both Dvorak and Varekois had official, nondelegable authority and responsibility for the placement of such highway warning signs, they are the proper parties defendant.

Factual Question on Negligence.

Appellants argue that they, as state employees, cannot be liable in tort for any accident resulting from the location of a highway warning sign which was placed in conformance with a legislative directive of the State Highway Commission.

They contend, first, that the placement of the sign in compliance with the 750-foot directive adopted by the State Highway Commission's Manual on Uniform Traffic Control Devices for Streets and Highways, pursuant to its statutory authority in 1961, ⁵ is reasonable as a matter of law.

This argument is untenable because it assumes that the highway warning signs were placed in strict conformance with the 750-foot directive of the State Highway Commission. Although appellants' affidavit asserts that the highway warning signs were placed 794.5 feet from the middle of the intersection where the accident occurred, respondent, by answering affidavit, avers that the warning signs were placed only 708.4 feet from the commencement of the right-angle curve. The 1961 Manual, effective at the time of the accident, states in pertinent part:

'Since warning signs are primarily for the protection of the driver who is unacquainted with the road, it is very important that care be given to their locations. In rural areas warning signs should normally be placed about 750 feet in advance of the hazard or condition warned of. . . .

'The actual advance warning distance will be determined by two factors, the prevailing speed and the condition warned against. . . .' ⁶

Depending upon what is considered to be the 'hazard or condition warned of,' the beginning or end of the right-angle turn, a substantial question of fact exists as to whether the Manual's 750-foot directive was complied with. Even if, as appellants insist, compliance with a legislative directive of the State Highway Commission renders the placement of a highway warning sign per se reasonable, ⁷ here, however, a question of fact remains as to whether the directive was, in fact, complied with.

Appellants' second argument is that the placement of a highway warning sign is a legislative or quasi-legislative decision and, similar to Raisanen v. Milwaukee, ⁸ cannot predicate liability for an accident resulting from its location. In this respect we think the trial court correctly relied upon this court's decision in Firkus v. Rombalski ⁹ in its conclusion that once appellants made the legislative or quasi-legislative decision to place the highway warning sign, they had a duty to place it and maintain it without negligence.

In Firkus this court affirmed a trial court's finding that the town of Hull, in Portage county, was negligent as a matter of law in failing to replace and maintain a highway arterial stop sign, with knowledge of its disappearance, for over nineteen days. Acknowledging that the town had no duty to put up the stop sign initially, this court held its failure to properly maintain the sign once it was erected, thereby causing an accident, was actionable negligence. In Raisanen it was held, however, that traffic signals which were functioning in accord with a predetermined plan and not in violation of any highway commission rules, did not give rise to a cause of action:

'This appeal concerns primarily the city's decision in programming its traffic control signals which decision conformed in all respects to the statutes and the rules of the highway commission, and which decision involved the choice of lawfully authorized alternatives. We fully concur with the rationale expressed by the New York court of appeals in Weiss v. Fote ((1960), 7 N.Y.2d 579, 200 N.Y.Supp.2d 409, 167 N.E.2d 63), that lawfully authorized programming of signal lights by a city should not give rise to tort liability by a jury second-guessing the reasonableness and safety of the plan. Therefore, we hold the complaint fails to state a cause of action in negligence.' ¹⁰

The Raisanen holding was recently reaffirmed by this court in Dusek v. Pierce County, ¹¹ a suit against the municipality for its failure to erect a highway warning sign alerting drivers of a hazardous intersection. Affirming the trial court's granting of summary judgment against the plaintiff, this court held:

'It is apparent from a review of these cases that whether or not to place a stop sign, a warning sign, or a yield sign at the approach to a county trunk highway is a legislative decision that must be undertaken by the county board and not by the courts. At the most, what the plaintiff spells out herein is the county's failure to exercise the legislative function. Although there is a duty, as spelled out in Firkus, to maintain signs once they are placed, there is no duty upon the legislative body of a government to place them at a highway intersection in the first place.' ¹²

Although the decision as to whether or not to locate a traffic sign is not actionable, a question of fact exists as to whether the instant highway warning signs were, in fact, located pursuant to the Highway Commission's directives. If they were, it is clear that Raisanen controls and the plaintiff should not be permitted to second guess the plan's safety. If it turns out, however, that the actual sign placement did not conform with the specifications outlined in the 1961 Manual, Raisanen offers appellants no protection. Whether or not the signs were placed in conformance with the Highway Commission's specifications is a question of fact. Accordingly, the trial court was correct in denying appellants' motion for summary...