Dusek v. Pierce County

• Decision Date: 06 May 1969
• Docket Number: No. 225,225
• Citation: 42 Wis.2d 498,167 N.W.2d 246
• Parties: Norman DUSEK, Jr., Appellant, v. PIERCE COUNTY, a Wis. political municlpal corp., Respondent, Mutl. Service Cas. Ins. Co., Defendant, Town of Clifton, a municipal corp., Interpleaded Defendant.
• Court: Wisconsin Supreme Court

Page 246

167 N.W.2d 246

42 Wis.2d 498

Norman DUSEK, Jr., Appellant, v. PIERCE COUNTY, a Wis. political municlpal corp., Respondent Mutl. Service Cas. Ins. Co., Defendant Town of Clifton, a municipal corp., Interpleaded Defendant.

No. 225.

Supreme Court of Wisconsin.

May 6, 1969.

Gaylord & Lindsay, River Falls, for appellant.

Robert J. Richardson, Dist. Atty., Pierce Co., Spring Valley, for respondent. John W. Fetzner, Hudson (Gwin, Fetzner, Richards, & Skow, Hudson, of counsel).

HEFFERNAN, Justice.

On this appeal the plaintiff agrees that the trial judge would be correct if the action were in fact brought under sec. 81.15, Stats., which governs the bringing of actions against municipalities by reason of the 'insufficiency' or 'want of repair' of any highway which the town was bound to keep in repair. He acknowledges that the statute in that event requires actual written notice.

Plaintiff bases his argument on this court's decision in Holytz v. City of Milwaukee (1962), 17 Wis.2d 26, 115 N.W.2d 618, which abrogated the doctrine of municipal immunity. He points out that sec. 81.15, Stats., was a statutory exception to the immunity doctrine. He concedes that the plaintiff who brings a suit for highway defects that could be brought under only sec. 81.15 prior to Holytz is bound by the pre-Holytz procedural requirements of notice. He contends that sec. 895.43 was passed subsequent to Holytz and in response to it, and that this statute is applicable to acts of negligence by a municipality that are not embraced within the terms, 'insufficiency,' and 'want of repair,' and, as to those causes of action made viable by Holytz, a plaintiff is not barred by failure to given written notice, provided the defendant has actual notice and has not been prejudiced by the plaintiff's failure. Plaintiff contends that his second cause of action is based upon negligence made viable by Holytz and not contemplated by sec. 81.15.

Prior to Holytz, plaintiffs attempted to fit their fact situations to the terms of sec. 81.15, Stats., to avoid the general proscription of municipal immunity. Since Holytz, plaintiffs have attempted to avoid limitations of sec. 81.15, since, by so doing, they avoid the slightly more rigorous notice requirements. Accordingly, very different policy factors are now urged in discussing the applicability of sec. 81.15 than were urged in the pre-Holytz days.

The plaintiff on this appeal contends that a municipality may have liability for negligence in regard to highways that is broader in scope than the municipality's liability under sec. 81.15, Stats. As to the municipality's responsibility for negligence not covered by sec. 81.15, it contends that actual notice is sufficient. This court, of course, has decided that highway insufficiency and defect exception to pre-Holytz immunity did not cover all of the circumstances under which a municipal corporation can now be found liable for highway-connected negligence. We said in Stippich v. City of Milwaukee (1967), 34 Wis.2d 260, 266, 267, 149 N.W.2d 618, 621:

'We think the common-law duty embraces a somewhat larger area of what constituted an unsafe condition than that covered by the language of sec. 81.15. Of course, Holytz does not determine what constitutes negligence in this area; that is left to case law. While what affirmatively has been held to be a defect or an insufficiency or a want of repair under sec. 81.15 constitutes common-law negligence, the converse is not necessarily true.'

We have no difficulty in agreeing with the plaintiff's contention that a municipality may be guilty of negligence in connection with highways where the procedure is governed by sec. 895.43, Stats., rather than sec. 81.15, and that actual notice will permit the plaintiff's bringing suit. It seems equally clear from the affidavits that the negligence complained about does not arise from an 'insufficiency' or 'want of repair' of the highway as contemplated by sec. 81.15.

The accident occurred, according to the undisputed facts, not because the highway was insufficient or because it was out of repair, but because the county failed to erect a sign warning not of a hazardous highway condition but of the likelihood of approaching traffic on the intersecting road.

In regard to the safety of the road, the undisputed facts, as revealed by the affidavits, indicate that the road itself is perfectly safe from a structural and construction point of view, and there is no allegation, such as we have had in some cases, that the roadbed was too soft, that it was constructed too close to a precipice, or that there were inadequate guardrails. Rather, whatever lack of safety exists comes from the municipality's failure to recognize the hazards of increased traffic and its failure to warn users of the intersecting highways of the hazards of that traffic.

It is thus apparent that the facts reveal evidence of negligence only in the failure to erect proper signs. It seems clear that this is a type of negligence not comtemplated under sec. 81.15, Stats. In Firkus v. Rombalski (1964), 25 Wis.2d 352, 130 N.W.2d 835, this court accepted the plaintiff's assertion that the duty to maintain signs...