Harmann v. Schulke

• Decision Date: 26 October 1988
• Docket Number: No. 87-1289,87-1289
• Citation: 146 Wis.2d 848,432 N.W.2d 671
• Parties: William HARMANN, Jr., William Harmann, Sr., Linda C. Harmann, Plaintiffs- Appellants, v. Neil SCHULKE, Bernard H. Schulke, Milwaukee Mutual Insurance Company, Cherie Hadley, the Continental Insurance Company, John Hildebrandt, Home Mutual Insurance Company, Town of Farmington, Kim Grant, James and Mary Grant, David Grant, American Family Mutual Insurance Company, Maureen Schulke, and Milwaukee Mutual Insurance Company, Defendants, County of Waupaca, Town of Dayton, General Casualty Insurance Company, Defendants-Respondents. *
• Court: Wisconsin Court of Appeals

Page 671

432 N.W.2d 671

146 Wis.2d 848

William HARMANN, Jr., William Harmann, Sr., Linda C Harmann, Plaintiffs- Appellants, v. Neil SCHULKE, Bernard H. Schulke, Milwaukee Mutual Insurance Company, Cherie Hadley, the Continental Insurance Company John Hildebrandt, Home Mutual Insurance Company, Town of Farmington, Kim Grant, James and Mary Grant, David Grant American Family Mutual Insurance Company, Maureen Schulke and Milwaukee Mutual Insurance Company, Defendants, County of Waupaca, Town of Dayton, General Casualty Insurance Company, Defendants-Respondents.^*

No. 87-1289.

Court of Appeals of Wisconsin.

Argued July 21, 1988.

Opinion Released Oct. 26, 1988.

Opinion Filed Oct. 26, 1988.

Russell T. Golla, argued, and Anderson, Shannon, O'Brien, Rice & Bertz, on brief, Stevens Point, for plaintiffs-appellants.

Peter M. Farb, argued, and Gabert & Williams on brief, Appleton, for defendants-respondents Town of Dayton and General Cas. Ins. Co.

Thomas N. Harrington, argued, and Rodney D. DeKruif and Cook & Franke, S.C., on brief, Milwaukee, for defendants-respondents County of Waupaca and General Cas. Ins. Co.

Before DYKMAN, EICH and SUNDBY, JJ.

DYKMAN, Judge.

William Harmann, Jr., ¹ appeals from orders granting summary judgment dismissing his claims against the Town of Dayton, General Casualty Insurance Company and Waupaca county. Harmann was injured when an automobile in which he was a passenger failed to negotiate a curve on Rural Road in the town of Dayton, located in Waupaca county. His complaint alleged that Dayton and Waupaca were negligent in failing to post a curve warning sign and in failing to post a required forty-five mile per hour speed sign.

The issues are: (1) whether Dayton and Waupaca are immune from suit pursuant to SEC. 893.80(4), STATS.; (2)² whether Dayton's failures to place a curve warning sign or to cut tall grass on the shoulder of Rural Road rendered that road defective within the meaning of sec. 81.15, Stats., ³ and (3) whether Dayton's failure to post a forty-five mile per hour sign on a rustic road provides a basis for liability for Harmann's injuries. We conclude that: (1) Dayton and Waupaca are immune from suit pursuant to sec. 893.80(4); (2) Harmann has no valid claim under sec. 81.15; and (3) Dayton's failure to post forty-five mile per hour signs on a rustic road cannot provide a basis for liability for Harmann's injuries. Therefore we affirm.

Summary judgment is governed by sec. 802.08, Stats. We apply summary judgment methodology, outlined in In re Cherokee Park Plat, 113 Wis.2d 112, 115-116, 334 N.W.2d 580, 582-83 (Ct.App.1983), in the same manner as the trial court. We need not repeat that methodology here.

Harmann's complaint states a cause of action grounded on negligence. Dayton and Waupaca deny any negligence or that they had caused any injury to Harmann. Dayton and Waupaca also assert the affirmative defense of governmental immunity under sec. 893.80(4), Stats. This section provides immunity to a governmental subdivision and its officers or agents for acts done in an official capacity by the governmental subdivision's agents or officers, unless the agent or officer negligently performs a purely ministerial duty or if the complained of conduct is malicious, willful and intentional. C.L. v. Olson, 143 Wis.2d 701, 710-11, 422 N.W.2d 614, 617 (1988).

Because Dayton's and Waupaca's answer raises factual issues regarding negligence, causation and immunity, we turn to the affidavits supporting Dayton's and Waupaca's motions to determine whether they make prima facie cases for summary judgment. In other words, they must show defenses which would defeat Harmann's claims. In re Cherokee Park Plat, 113 Wis.2d at 116, 334 N.W.2d at 583. If Dayton and Waupaca show prima facie cases for immunity, and Harmann does not rebut those cases, we need not reach the negligence and causation issues. We first deal with Dayton's motion for summary judgment.

DAYTON'S SUMMARY JUDGMENT MOTION

According to an affidavit submitted by the Dayton town chairman in support of Dayton's motion for summary judgment, Dayton participated in a 1974 state signing survey. As a result of that survey, several changes were suggested relating to signs on Rural Road. However, no sign was recommended for the curve where the accident occurred. In addition, the Dayton town board members, having driven on the curve from time to time, did not think the curve needed a sign. Based on the survey and personal experience, Dayton exercised its discretion in not placing the curve sign.

The question of whether sec. 893.80(4), Stats., provides immunity to a government subdivision or its agents requires statutory interpretation. We review such questions de novo. E.S. v. Seitz, 141 Wis.2d 180, 184, 413 N.W.2d 670, 672 (Ct.App.1987).

a. Immunity Under Sec. 893.80(4), Stats.

Harmann argues as follows: Sections 84.02(4)(e) and 349.065, Stats., mandated the adoption of the Manual on Uniform Traffic Control Devices (MUTCD); the Manual required Dayton to place a warning sign at the curve in question on Rural Road; Dayton had a statutory duty to place the warning sign; failure to place the statutorily mandated sign is not immunized by sec. 893.80(4), Stats.

Section 84.02(4)(e), Stats., provides:

The department shall adopt a manual establishing a uniform system of traffic control devices for use upon the highways of this state. The system shall be consistent with and, so far as practicable, conform to current nationally recognized standards for traffic control devices.

Section 349.065, Stats., provides in part:

Local authorities shall place and maintain traffic control devices upon highways under their jurisdiction to regulate, warn, guide or inform traffic. The design, installation and operation or use of new traffic control devices placed and maintained by local authorities after the adoption of the uniform traffic control devices manual under s. 84.02(4)(e) shall conform to the manual.

The Department of Transportation adopted the Manual on September 19, 1974. Foss v. Town of Kronenwetter, 87 Wis.2d 91, 103 n. 26, 273 N.W.2d 801, 808 (Ct.App.1978). However, the Manual must be read in light of Dusek v. Pierce County, 42 Wis.2d 498, 167 N.W.2d 246 (1969). In Dusek, the supreme court stated:

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.... 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.

Id. at 506, 167 N.W.2d at 250.

In Firkus v. Rombalski, 25 Wis.2d 352, 358, 130 N.W.2d 835, 838 (1964), relied on in Dusek, the court said:

The town had no affirmative duty to erect the sign in the first instance, but having done so it was incumbent upon it to properly maintain the sign as a safety precaution to the traveling public which has the right to rely on its presence.

The question therefore is whether the department's adoption of the Manual gave Dayton an "affirmative duty to erect the [warning] sign in the first instance." We think not. The Manual, adopted by statute in its entirety, provides in its introduction: "It is the intent that the provisions of this Manual be standards for traffic control devices installation, but not a legal requirement for installation." Sec. 1A-4, MUTCD. The Manual does not mandate the erection of any sign. ⁴

Harmann also argues that, even if the Manual and the statutes allow for the exercise of discretion, Dayton exercised that discretion "when it decided to participate in the federally funded program for the purpose of having all of its roads, including Rural Road, signed in accordance with the Manual." However, since Dayton has no duty to place a curve warning sign, its failure to place the sign can provide no basis for liability. "At the most, what the plaintiff spells out herein is the [town's] failure to exercise the legislative function." Dusek, 42 Wis.2d at 506, 167 N.W.2d at 250.

b. No Valid Claim Under Sec. 81.15, Stats.

Section 81.15, Stats., allows a person injured due to an "insufficiency or want of repairs of any highway which any town ... is bound to keep in repair" to sue the town for damages. Harmann claims damages under this section because Dayton's failures to place a curve warning sign and to cut the tall grass on the curve's shoulder rendered Rural Road defective under sec. 81.15. The question of whether the lack of a warning sign or the presence of tall grass on a road's shoulder are insufficiencies within the meaning of sec. 81.15 requires statutory interpretation. We review such questions de novo. E.S., 141 Wis.2d at 184, 413 N.W.2d at 672. We reject Harmann's arguments on this issue.

The Wisconsin Supreme Court has described the scope of negligence actionable under sec. 81.15, [Stats.,] as limited to that involving physical defects existing in the traveled surface of the highway or absence or insufficiency of warnings of such defects, and has expressly withdrawn language that any defect in the maintenance or operation of traffic signals was an insufficiency or want of repair.

Foss, 87 Wis.2d at 100, 273 N.W.2d at 806 (footnotes omitted). In Loehe v. Fox Point, 253 Wis. 375, 379, 34 N.W.2d 126, 128 (1948), the court noted that the defendant had no duty to warn of a right angle turn in the roadway. The curve in Rural Road was not an insufficiency within the meaning of sec. 81.15.

With regard to the tall grass issue, Harmann did not allege this defect in his complaint or amended complaints. Under summary judgment methodology, we must construe a complaint liberally, and accept factual allegations, or the reasonable inferences from them, as true. C.L., 143 Wis.2d at 721, 422 N.W.2d at 622. Harmann...