Foss v. Town of Kronenwetter
| Citation | 87 Wis.2d 91,273 N.W.2d 801 |
| Decision Date | 01 December 1978 |
| Docket Number | 77-578,Nos. 77-577,s. 77-577 |
| Parties | Donna FOSS, Plaintiff-Appellant, v. TOWN OF KRONENWETTER, a Municipal Corporation, Defendant-Respondent and Third-Party Plaintiff, Mutual Service Casualty Insurance Co., a Foreign Insurance Corporation, George Babl, Inc., a Domestic Corporation and Sentry Insurance, a Domestic Insurance Corporation and Ben Jansen, Defendants-Respondents, Wisconsin Valley Trust Co., Personal Representative of the Estate of John P. Norship, Third-Party Defendants-Respondents. The ESTATE of John P. NORSHIP by Wisconsin Valley Trust Company, Personal Representative, Plaintiff-Appellant, v. GEORGE BABL, INC., a Wisconsin Corporation, and Ben Jansen, Defendants- Respondents, Town of Kronenwetter, a Municipal Corporation, Defendant-Respondent and Third-Party Plaintiff, Mutual Service Casualty Insurance Co., a Foreign Insurance Corporation, Third-Party Defendant-Respondent. |
| Court | Court of Appeals of Wisconsin |
F. E. Bachhuber, Jr. and James P. Lonsdorf, Wausau (argued), for appellant in No. 77-577; Bachhuber Law Office and Timken, Lonsdorf & Mallery, S. C., Wausau, on briefs.
George A. Richards, Wausau (argued), for respondents Town of Kronenwetter and Mutual Service Cas. Ins. Co.; Tinkham, Smith, Bliss, Patterson, Richards & Hessert, Wausau, on brief.
Walter H. Piehler, Wausau (argued), for respondents George Babl, Inc. and Sentry Ins.; Terwilliger, Wakeen, Piehler, Conway & Klingberg, S. C., Wausau, on brief.
John W. Stevens, Wausau (argued), for appellant in No. 77-578; Stevens & Drach, Wausau, on briefs.
Before DEAN, P. J., and DONLIN and FOLEY, JJ.
Plaintiffs Donna Foss (Foss) and the Estate of John Norship (Norship) appeal from orders entered by the circuit court for Marathon county, setting aside the jury verdict and granting defendants George Babl, Inc., (Babl) and Sentry Insurance (Sentry) a directed verdict and granting the defendants Town of Kronenwetter (Town) and Mutual Service Casualty Insurance (Mutual) a new trial on liability. The Town and Mutual cross-appeal the denial of their motion for a directed verdict and their motion to reduce damages under a subrogation theory. We affirm.
At about midnight on April 27, 1974, Norship and Foss, a passenger on Norship's motorcycle, rode over an embankment in the Town of Kronenwetter, at what the defendants maintain was the end of Nelson Road and at what the plaintiffs maintain was a construction site for a westerly extension of Nelson Road. The motorcycle landed in a low swamp about twenty feet below the embankment. Norship was killed and Foss sustained injuries. Defendant Babl dumped fill at the edge of and over the embankment about five months before the accident.
At those times, Nelson Road was an unpaved town road, running west from old Highway 51 for three-tenths of a mile. The intersection of old 51 and West Nelson Road was lighted and a yellow dead-end sign was bolted to the back of the stop sign at the intersection. The sign was on the left side of the road facing traffic proceeding from old 51 onto West Nelson Road toward the accident site. At the dumping site, before the drop-off, there was an unpainted steel barricade attached to two wooden posts. At trial the testimony was in conflict as to whether the barricade posts were in the ground and whether there were any reflectors on the barricade at the time of the accident.
The Town had authorized a westerly extension to Nelson Road at its annual meeting in April, 1974, on land dedicated to the Town in 1964. When Babl dumped the fill at the end of the road in December, 1973, the barricade had been removed by Ben Jansen, an owner of property north of Nelson Road, with the acquiescence of the Town. After Babl completed its dumping, the Town's grader leveled off the dumped material. Jansen and the town chairman testified they replaced the barricade. However, some residents of Nelson Road testified the barricade was lying on top of the mound of rubble and dirt before the accident.
Foss and Norship brought actions against the Town, Babl, their respective insurers, and against Ben Jansen. The jury apportioned negligence as follows: Town, 65%; Norship, 25%; Foss, 5%; Babl, 5%; and Jansen 0%. The trial court granted Babl a directed verdict dismissing Foss's complaint, denied the Town a directed verdict, but granted the Town a new trial on liability. Also denied was the Town's motion to reduce Foss's damages by $10,000, the amount Foss received under a group health and accident insurance policy.
The following issues are before this court on appeal:
(1) Whether the Town was entitled to a directed verdict.
(2) Whether the Town is entitled to a new trial on liability as ordered by the trial court.
(3) Whether Babl was entitled to a directed verdict against Foss.
(4) Whether the collateral source rule precludes reduction of the jury damage award by the amount of payments received by Foss under a group health and accident insurance policy.
The Town moved for a directed verdict before the case was submitted to the jury, and renewed its motion after the jury had attributed 65% Of the causal negligence to it. The trial court denied the motion on the ground that there was sufficient evidence to support a finding of negligence in failing to warn or properly barricade the end of Nelson Road, but did grant the Town's motion for a new trial on liability.
The test for whether a directed verdict should have been granted is the same whether the decision is made before or after submission to the jury. If in the light most favorable to the plaintiffs, there is any evidence, other than mere conjecture or incredible evidence to sustain the plaintiffs' causes of action and a verdict against the Town, then the decision was for the jury and the trial court properly denied the Town's motions. 1
The complaints allege a breach of the Town's common law duty to warn of the dead end of Nelson Road, 2 and the evidence presented at trial was such that a properly instructed jury could have reasonably found the Town was causally negligent. 3
The Town's duty to warn arises from the state of development of Nelson Road and of the surrounding residential area 4 and from topographical factors, namely the rubble pile and drop-off at the end and the swath extending west therefrom. 5 Unless users of highways are chargeable with notice from signs, barriers, vegetation, or the nature and location of a particular road, they have a right to assume highways will not terminate abruptly at an embankment. 6 However, without specific legislative or administrative standards, the absence of a sign or barrier on a particular dead-end road does not always amount to a breach of a municipality's duty of ordinary care. 7
If a properly instructed jury could reasonably find a causal breach of the Town's duty, such negligence is not necessarily actionable. The Town's negligence is actionable 8 if plaintiffs' injuries happened by reason of an insufficiency or want of repair of any highway, or if the Town's acts were not done in the exercise of legislative, quasi-legislative, or quasi-judicial functions pursuant to secs. 81.15, 9 or 895.43(3), 10 Stats., respectively.
The plaintiffs do not cite and our research does not reveal any cases holding a lack of adequate warning of a dead end is an insufficiency or want of repair of a highway. 11 Sec. 81.15, Stats., has spawned a line of cases which have not always been consistent in their development, theory, or language. 12 The Wisconsin Supreme Court has described the scope of negligence actionable under sec. 81.15, as limited to that involving physical defects existing in the traveled surface of the highway or absence or insufficiency of warnings of such defects, 13 and has expressly withdrawn language that any defect in the maintenance or operation of traffic signals was an insufficiency or want of repair. 14 Being satisfied that a dead end is by its very nature not in the traveled portion 15 and that plaintiffs failed to establish that the rubble pile was in the traveled portion, we conclude the failure to warn here is not actionable under sec. 81.15. 16
Sec. 895.43(3), Stats., confers statutory immunity on municipalities and their officers for acts done in the exercise of specified discretionary functions. In a series of cases involving immunity with respect to highway signs, 17 the supreme court has established a general rule that once a legislative or quasi-legislative decision to place a highway sign is made, negligence in placement may be and negligence in maintenance is actionable; 18 however, the cases distinguish placement from maintenance.
In the present case, the plaintiffs allege negligence in the placement of the dead-end sign and in the maintenance of the barrier, both as to reinstallation and as to lack of reflective capacity. The purpose of dead-end signs and barriers being to warn highway users of a hazardous condition, we deem the barrier to be a "sign" within the highway sign cases.
In sign maintenance cases 19 the supreme court has held that negligence in failing to replace a stop sign removed by vandals and negligence in failing to prevent foliage from obscuring a stop sign were actionable, notwithstanding sec. 895.43(3), Stats. However, in the sign placement cases, 20 sec. 895.43(3) was held to preclude actions for negligence involving programming and operation of traffic signals, a stop sign at a T-intersection and a single stop sign at a double intersection. In the immunity cases the supreme court has refused to countenance second-guessing of the reasonableness of the legislative choices themselves or to consider the consequences of such choices.
The court has proscribed judicial second-guessing where an examination of the relevant statutes or administrative rules revealed an express 21 or implied 22 zone...
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