Morris v. Juneau County, No. 96-2507 (Wis. 6/30/1998)

• Decision Date: 30 June 1998
• Docket Number: No. 96-2507.,96-2507.
• Parties: John T. Morris and Jeanne Morris, Plaintiffs-Appellants, v. Juneau County, a municipal corporation and Wisconsin County Mutual Insurance Corporation, Defendants-Respondents Petitioners.
• Court: Wisconsin Supreme Court

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John T. Morris and Jeanne Morris, Plaintiffs-Appellants, v. Juneau County, a municipal corporation and Wisconsin County Mutual Insurance Corporation, Defendants-Respondents Petitioners.

No. 96-2507.

Supreme Court of Wisconsin.

Opinion Filed: June 30, 1998.

REVIEW of a decision of the Court of Appeals. Affirmed. Reported at: 211 Wis. 2d 887, 568 N.W.2d 652 (Ct. App. 1997-UNPUBLISHED)

For the defendants-respondents-petitioners there were briefs by Bradley D. Armstrong, Paul Voelker, Christopher P. Koback and Axley Brynelson, Madison and oral argument by Christopher R. Koback.

For the plaintiffs-appellants there was a brief and oral argument by William H. Rudolph, Hillsboro.

Amicus curiae was filed by John J. Prentice, Andrew T. Phillips and Prentice & Phillips, Milwaukee for the Wisconsin Counties Association.

Amcus curiae was filed by Michael Riley and Atterbury, Riley & Luebke, S.C., Madison for the Wisconsin Academy of Trial Lawyers.

WILLIAM A. BABLITCH, J.

¶ 1 Juneau County (County) seeks review of a decision of the court of appeals which held that the County was not immune from suit for alleged negligence in repairing the shoulder of a highway. John T. Morris (Morris) was injured when another vehicle traveling towards him hit a rut on the shoulder of the road, lost control, and came back over the center line striking his vehicle. Because we conclude that the general immunity given counties under Wis. Stat. § 893.80(4) is not applicable when the conditions of Wis. Stat. § 81.15 are met, as they are here, and because we conclude that the shoulder is part of the highway, we affirm the decision of the court of appeals. In addition, because we conclude that the Morrises sufficiently stated a claim in their pleadings, we need not determine whether Ms. Morris' affidavit, filed after the County's motion for summary judgment and alleging that there was also a pothole in the highway, was inconsistent with her prior deposition testimony and filed only to create a genuine issue of material fact.

¶ 2 The following facts are relevant to this appeal. On February 23, 1994, the plaintiff, Morris, was driving his vehicle westbound on State Highway 82 when a vehicle driven eastbound by Jean Williams (Williams) went out of control, crossed the center line, and hit the Morris vehicle. Mr. Morris suffered severe injuries as a result of the accident.

¶ 3 Mr. Morris and his wife, Jeanne Morris, filed a Notice of Claim with Juneau County, a municipal corporation, pursuant to Wis. Stat. § 893.80(1)(b) (1991-92),¹ alleging that Williams lost control of her car due to a drop-off (also referred to as a rut) between the blacktop and the aggregate gravel shoulder of the road. The claim was based on this highway defect and the County's want of maintenance or repair. The County denied the claim and served a notice of disallowance on the plaintiffs.

¶ 4 The Morrises then filed a Summons and Complaint against the County and its insurance company, alleging that the collision between Morris and Williams occurred in part due to a highway defect resulting from a want of maintenance or repair by Juneau County. Because the dispute with Williams was settled out-of-court, the subject of the action against the County was the apportionment of the County's negligence contributing to Morris' injury. Mr. Morris requested damages for his medical expenses, pain and suffering, loss of enjoyment of life, permanent disability, loss of wages, and loss of future earning capacity. Ms. Morris requested damages for her medical expenses, loss of society and companionship, and loss of consortium.

¶ 5 Among other affirmative defenses, the County answered that it was immune from the plaintiffs' claims because they were based on acts that the County performed in the exercise of its discretionary powers. The County also answered, as an affirmative defense, that no damages sustained by the Morrises happened because of the insufficiency or want of repairs of the highway. The County demanded judgment dismissing the plaintiffs' complaint on its merits, with prejudice. The County later filed a motion for summary judgment.

¶ 6 In response to the County's motion for summary judgment, plaintiffs' counsel deposed several persons including William Anderson (Anderson), the Department of Transportation Area Highway Maintenance Supervisor. During his deposition, Anderson presented photographs of the accident site that he had taken in July 1994, five months after Morris' accident. The photographs showed that in the approximate area where Williams lost control of her vehicle, there was a pothole on the edge of the pavement. Although Anderson did not know whether the pothole was present on the date of the accident, he testified that such a pothole could take a year to develop. Following Anderson's deposition, Ms. Morris filed an affidavit in which she stated for the first time that two days after the accident, she noticed a "big chunk of pavement broken off at the beginning of the rut."

¶ 7 The Juneau County Circuit Court, Patrick J. Taggart, Judge, granted the County's motion for summary judgment. The court determined that the County was immune from suit under Wis. Stat. § 893.80(4) because repairing the rut was a discretionary act. The court further determined that the Morrises did not have a cause of action under Wis. Stat. § 81.15 because that statute only imposes an obligation on the County to keep the traveled surface of the road in a reasonably safe condition. The circuit court stated that the shoulder of the road is not part of the traveled surface of the highway and the road was in a reasonably safe condition given the winter weather conditions. The court did not address Ms. Morris' affidavit regarding the pothole.

¶ 8 The Morrises appealed and in an unpublished decision,² the court of appeals reversed the circuit court's judgment granting the County's motion for summary judgment. The court of appeals determined that if Wis. Stat. § 81.15 is otherwise applicable the County is liable under § 81.15 for insufficiency or want of repairs of a highway, regardless of whether the acts were discretionary under Wis. Stat. § 893.80(4). The court of appeals further concluded that the shoulder of the highway is within the meaning of the term "highway" used in § 81.15. Finally, the court of appeals determined that there was no basis for the County's assertion that Ms. Morris submitted her affidavit, which stated that there was a pothole in the highway, in bad faith. The court of appeals reversed the circuit court's judgment because it concluded that the case presented disputed issues of material fact, thus making a grant of summary judgment inappropriate.

¶ 9 This court granted the County's petition for review, and we address the two primary issues presented by this case: 1) whether governmental immunity under Wis. Stat. § 893.80(4) applies to an actionable claim under Wis. Stat. § 81.15; and 2) whether the term "highway" includes the shoulder adjacent to the paved portion of the highway as the term "highway" is used in § 81.15. We hold that if a plaintiff states an actionable claim under § 81.15, the governmental immunity provisions of § 893.80(4) do not apply. Therefore, because the Morrises stated an actionable claim under § 81.15, we need not determine whether the County's duties were discretionary or ministerial under § 893.80(4). We also hold that the definition of "highway" includes the shoulder of the highway. Because we conclude that the plaintiffs sufficiently stated a claim in their pleadings, we need not determine whether Ms. Morris' affidavit, alleging that there was also a pothole in the highway, was inconsistent with her prior deposition testimony and filed only to create a genuine issue of material fact. Accordingly, we affirm the court of appeals' decision.

¶ 10 On appeal, this court applies the same summary judgment methodology as applied by the circuit court. See Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). A circuit court properly grants summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Wis. Stat. § 802.08(2). The party moving for summary judgment has the burden of proving that there is no genuine issue of material fact. See Grams v. Boss, 97 Wis. 2d 332, 338, 294 N.W.2d 473 (1980). Inferences should be drawn in the light most favorable to the non-moving party. See id. at 339. Whether the moving party in this case, the County, is entitled to judgment as a matter of law depends on our interpretation of Wis. Stat. §§ 81.15 and 893.80(4).

¶ 11 The first issue presented by this case, whether governmental immunity under Wis. Stat. § 893.80(4) applies to an actionable claim under Wis. Stat. § 81.15, requires that we interpret both statutes and their relationship. A question of statutory interpretation is a question of law that we review de novo. See Colby v. Columbia County 202 Wis. 2d 342, 349, 550 N.W.2d 124 (1996) (citing Pufahl v. Williams, 179 Wis. 2d 104, 107, 506 N.W.2d 747 (1993)). The main goal of statutory interpretation is to discern the intent of the legislature. See State v. Rosenburg, 208 Wis. 2d 191, 194, 560 N.W.2d 266 (1997) (citing Scott v. First State Ins. Co., 155 Wis. 2d 608, 612, 456 N.W.2d 152 (1990)). "We ascertain legislative intent by examining the language of the statute, as well as its scope, history, context, subject matter, and purpose." Rosenburg, 208 Wis. 2d at 194 (citing Scott, 155 Wis. 2d at 612). When there is an inconsistency between statutes, we must reconcile them without nullifying either statute and in a way which gives effect to legislative intent. See Colby, 202 Wis. 2d at 349 (citing Phillips v. Wisconsin Personnel Comm'n, 167 Wis. 2d 205, 217, 482...