Physicians Plus Ins. v. Midwest Mut. Ins., No. 00-1836.

• Court: Court of Appeals of Wisconsin
• Writing for the Court: Before Dykman, P.J., Vergeront and Deininger, JJ.
• Citation: 2001 WI App 148,632 N.W.2d 59,246 Wis.2d 933
• Decision Date: 28 June 2001
• Docket Number: No. 00-1836.
• Parties: PHYSICIANS PLUS INSURANCE CORPORATION, Subrogated-Plaintiff-Respondent, v. MIDWEST MUTUAL INSURANCE COMPANY, Defendant, THERESA MUTUAL FIRE INSURANCE COMPANY, Donald Franke, Wisconsin Municipal Mutual Insurance Company, Dodge County, Robert Embertson, Rural Mutual Insurance Company, Township of Leroy and Linus Schraufnagel, Defendants-Appellants. Timothy J. SMITH, Plaintiff-Respondent, STATE of Wisconsin, Department of Health and Family Services, Division of Health, Subrogated-Plaintiff-Respondent, v. THERESA MUTUAL INSURANCE COMPANY, Don-Er Farms, Inc., Donald Franke, Ermanelda Franke, Wisconsin Municipal Mutual Insurance Company, Dodge County, Robert Henken, Highway Commissioner for Dodge County, Robert Embertson, Rural Mutual Insurance Company, and Township of Leroy, Defendants-Appellants.

246 Wis.2d 933
2001 WI App 148
632 N.W.2d 59

PHYSICIANS PLUS INSURANCE CORPORATION, Subrogated-Plaintiff-Respondent,
v.
MIDWEST MUTUAL INSURANCE COMPANY, Defendant,
THERESA MUTUAL FIRE INSURANCE COMPANY, Donald Franke, Wisconsin Municipal Mutual Insurance Company, Dodge County, Robert Embertson, Rural Mutual Insurance Company, Township of Leroy and Linus Schraufnagel, Defendants-Appellants.¹
Timothy J. SMITH, Plaintiff-Respondent,
STATE of Wisconsin, Department of Health and Family Services, Division of Health, Subrogated-Plaintiff-Respondent,
v.
THERESA MUTUAL INSURANCE COMPANY, Don-Er Farms, Inc., Donald Franke, Ermanelda Franke, Wisconsin Municipal Mutual Insurance Company, Dodge County, Robert Henken, Highway Commissioner for Dodge County, Robert Embertson, Rural Mutual Insurance Company, and Township of Leroy, Defendants-Appellants.¹

No. 00-1836.

Court of Appeals of Wisconsin.

Submitted on briefs February 12, 2001.

Decided June 28, 2001.

246 Wis.2d 941

On behalf of the defendants-appellants, Dodge County, Robert Embertson, Wisconsin Municipal Mutual Insurance Co., and Robert Henken, the cause was submitted on the briefs of Robert E. Storck of Storck, Schnabl & Madden, Mayville

On behalf of the defendants-appellants, Theresa Mutual Insurance Co., Don-Er Farms, Inc., Donald Franke and Ermanelda Franke, the cause was submitted on the briefs of Arnold P. Anderson of Mohr & Anderson, S.C., Madison and Thomas E. Goss, Jr. of Mueller, Goss & Possi, S.C., Milwaukee.

On behalf of the defendants-appellants, Township of Leroy, Linus Schraufnagel, and Rural Mutual Insurance Co., the cause was submitted on the briefs of Phillip J. Eckert of O'Meara Law Firm, LLP, West Bend.

On behalf of the plaintiff-respondent, Timothy J. Smith, the cause was submitted on the brief of Eric A. Farnsworth of DeWitt Ross & Stevens, S.C., Madison.

Before Dykman, P.J., Vergeront and Deininger, JJ.

¶ 1. DEININGER, J.

Dodge County, the Town of Leroy, several officials of each, Donald and Ermanelda Franke and their farm corporation, and the liability insurers for all of the foregoing, appeal an order granting partial summary judgment in favor of

246 Wis.2d 942

plaintiff Timothy Smith.² The trial court concluded that the County, the Town, and the Frankes each had a duty to eliminate the safety hazard created by low-hanging tree branches which obscured a stop sign, that each failed to do so, and that the obscuration of the sign was a cause of the accident in which Smith was injured. Accordingly, it ordered that only the apportionment of negligence "as compared to each other and as compared to any other parties whose negligence contributed to the accident, will be determined by subsequent jury trial." We granted the County, the Town, and the Frankes, each leave to appeal the trial court's order, and each claims the trial court erred in its summary judgment ruling. We agree that the trial court should not have granted summary judgment on the issue of causation, but we affirm the order in all other respects

246 Wis.2d 943

BACKGROUND

¶ 2. On the afternoon of July 21, 1996, Timothy Smith and a passenger on his motorcycle were traveling northbound on Dodge County Trunk Highway Z ( CTH "Z") in the Town of Leroy. At the intersection of CTH "Z" and Ledge Road, a town road, Smith's motorcycle collided with a vehicle driven by Diane Smith, who is not related to Timothy, and who was traveling eastbound on the town road at the time of the collision.³ Diane stated that she had not noticed a "stop ahead" sign on Ledge Road, that the stop sign at its intersection with CTH "Z" was obscured from her view by the branches of a tree located in the yard of the Frankes' farm residence (which is situated in the southwest corner of the intersection), and that her view of traffic coming from the south on CTH "Z" was blocked by the Frankes' buildings and the tree.⁴ She admitted to drinking beer prior to the accident and to removing some full cans of beer from her vehicle prior to the arrival of sheriff's deputies.

¶ 3. The stop sign in question was placed by the County and was located within the CTH "Z" right-of-way. CTH "Z" is a county "arterial" highway, and there were no traffic signs or control devices regulating traffic on the county highway at its intersection with Ledge Road. The tree was located on land owned by the

246 Wis.2d 944

Frankes, and its trunk was either wholly or in large part within the Town's right-of-way for Ledge Road, about fourteen feet south (along CTH "Z") and twenty-four feet west (along Ledge Road) of the stop sign. The Town maintains Ledge Road. The tree's branches facing the Frankes' residence had been trimmed, but on the roadside, the branches extended to within four-and-one-half feet of the paved road, and to within approximately one foot of the ground. The record contains several photographs and a videotape taken within two hours of the accident which show the locations of the intersection, the stop sign, the tree and its branches. On the basis of this photographic evidence, the trial court concluded that there could be no dispute that the tree branches "completely obscured" the stop sign from the view of an eastbound motorist on Ledge Road until the motorist is virtually upon the intersection

¶ 4. An arborist averred in an affidavit that the tree in question is a honey locust tree, and that based on the "size or dimension of the branches which were obstructing the stop sign," the obstruction existed "for at least the spring and summer of 1996 and the foliage season of 1995." The County inspects its stop signs every other November, at night, to determine their reflectivity, but does not regularly conduct inspections to see if vegetation or trees obscure the signs. The town board conducts an annual inspection of its roads in April, at a time when there are no leaves on the trees. The Frankes use their driveway, which accesses Ledge Road just west of the tree and stop sign at issue, about twice a day. Mrs. Franke is the Town of Leroy assessor, and a town board member resides across Ledge Road from the Frankes.

246 Wis.2d 945

¶ 5. The County, the Town and the Frankes all moved for summary judgment, each arguing that it or they had no duty to eliminate the obstruction to the view of the stop sign created by the tree branches. The trial court denied these motions in June 1998. The matter was set for trial in January 2000, but in an apparent attempt to narrow or clarify issues to be tried, the court took the case off the trial calendar and entertained additional summary judgment motions. Smith moved for partial summary judgment on the liability of each of the defendants for his injuries, and all three defendants renewed their motions asking the court to rule that each had no liability for Smith's injuries

¶ 6. The court ruled in Smith's favor, concluding that, as to the liability of each of the defendants, there were no issues of material fact to be tried; that as a matter of law, the County, the Town, and the Frankes had each breached a duty to abate the nuisance created by the tree branches obscuring the stop sign; and that the obscuration of the stop sign was a cause of the injury-producing accident, leaving only apportionment of causal negligence (and, presumably, damages) to be tried. Upon our granting of leave, the County, the Town, and the Frankes appeal.

ANALYSIS

I.

[1-3]

¶ 7. We review an order for summary judgment de novo, owing no deference to the trial court. Waters v. United States Fid. & Guar. Co., 124 Wis. 2d 275, 278, 369 N.W.2d 755 (Ct. App. 1985). "[S]ummary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment

246 Wis.2d 946

as a matter of law." M&I First Nat'l Bank v. Episcopal Homes Mgmt., Inc., 195 Wis. 2d 485, 496-97, 536 N.W.2d 175 (Ct. App. 1995); WIS. STAT. § 802.08(2) (1999-2000).⁵ We will reverse a decision granting summary judgment if the trial court incorrectly decided legal issues or if material facts were in dispute. Coopman v. State Farm Fire & Cas. Co., 179 Wis. 2d 548, 555, 508 N.W.2d 610 (Ct. App. 1993).

[4, 5]

¶ 8. "The well-known purpose of summary judgment is `to avoid trials where there is nothing to try.'" Transportation Ins. Co., Inc. v. Hunzinger Constr. Co., 179 Wis. 2d 281, 289-90, 507 N.W.2d 136 (Ct. App. 1993) (citation omitted). A party seeking summary judgment, such as Smith did here, must" `establish a record sufficient to demonstrate . . . that there is no triable issue of material fact on any issue presented.'" Id. at 290 (citation omitted). We, like the trial court, however, are prohibited from deciding issues of fact and may decide only whether a factual issue exists. Coopman, 179 Wis. 2d at 555.

¶ 9. With these principles in mind, we review the record before us to determine whether the trial court erred in granting summary judgment to Smith on the issue of the liability of each of the defendants for his injuries. Although our review is de novo, we are aided in this case by the trial court's thoughtful analysis. See Katzman v. Ethics Bd., 228 Wis. 2d 282, 291, 596 N.W.2d 861 (Ct. App. 1999). In its forty-three-page written decision and six-page supplemental decision, the trial court has thoroughly laid out its reasoning and directed our attention to items in the record which

246 Wis.2d 947

support its conclusions. The trial court's effort in these regards has greatly assisted us in our review.

II.

[6, 7]

¶ 10. We consider first whether the trial court erred in denying summary judgment to any of the three defendants, each of whom claim to have had "no duty" with respect to the tree branches which obscured the stop sign. As we discuss in greater detail below, we conclude that the supreme court's discussion and holding in Brown v. Milwaukee Terminal Railway Co., 199 Wis. 575, 224 N.W. 748, on reargument, 199 Wis. 588, 227 N.W. 385 (1929) provides the proper framework for our analysis of...