Sanem v. Home Ins. Co.
| Decision Date | 27 June 1984 |
| Docket Number | No. 82-1262,82-1262 |
| Citation | 350 N.W.2d 89,119 Wis.2d 530 |
| Parties | Ruth SANEM and Clarence Sanem, Plaintiffs-Appellants-Petitioners, v. The HOME INSURANCE COMPANY, a foreign insurance corporation, and Ozaukee County, Defendants-Respondents. |
| Court | Wisconsin Supreme Court |
Kevin M. O'Donnell (argued), Milwaukee, for plaintiffs-appellants-petitioners; O'Donnell, Welcenbach & Widman, Milwaukee, on brief.
Craig W. Nelson (argued), Milwaukee, for defendants-respondents; Piette, Knoll & Nelson, S.C., Milwaukee, on brief.
Mark Hazelbaker, Madison, filed amicus curiae brief for Wisconsin Counties Association.
Burt P. Natkins and Le Roy A. Lokken, Madison, filed amicus curiae brief for the League of Wisconsin Municipalities.
This is a review of a court of appeals decision 1 which affirmed an order entered by the circuit court for Ozaukee county, the Honorable Warren A. Grady, Circuit Court Judge, dismissing petitioner Sanems' complaint against respondents Ozaukee county and The Home Insurance Company, pursuant to respondents' motion brought under section 802.06(2)(f), Stats., for failure to state a claim upon which relief can be granted.
Because this review is based upon an order granting the respondents' motion to dismiss for failure to state a claim upon which relief can be granted, the only facts before this court are those pleaded in the complaint. This action was commenced by Ruth and Clarence Sanem for personal injuries sustained by Ruth Sanem in an automobile accident on February 14, 1979, at the intersection of state highways 84 and 57 in Ozaukee county. Ruth Sanem was traveling eastbound on highway 84 near the intersection where she stopped her car before actually entering the intersection. She was able to drive across the southbound lanes of highway 57, but stopped again before continuing across the northbound lanes of highway 57. When she continued across the remaining lanes, her car was struck by a northbound vehicle. The Sanems alleged in their amended complaint that Ruth Sanem was unable to observe any northbound traffic on highway 57 because of Ozaukee county's negligence in three respects. These allegations of negligence consisted of (1) knowingly allowing an extremely dangerous intersection to exist without notifying the appropriate authorities so that action could be taken to reduce the dangerousness of this intersection, (2) negligently discharging its duty to remove snow and ice from the intersection by piling large mounds of snow onto the southern median strip, thereby interfering with Ruth Sanem's vision, and (3) negligently maintaining the intersection by failing to remove ice and snow from the median, which blocked the vision of drivers utilizing highways 84 [119 Wis.2d 533] and 57. On the date of the accident, the county was insured by The Home Insurance Company.
The respondents subsequently brought a motion to dismiss the Sanems' complaint, arguing that the county had no duty to take any affirmative action regarding the intersection and that it had no duty to remove snow from the median strip of a highway adjacent to an intersection in order to improve driver visibility. The circuit court granted the respondents' motion, finding no common law or statutory authority to support Sanems' argument that the county had any affirmative duty to notify the department of transportation or any state highway department of the allegedly dangerous nature of the intersection. The court also found that imposing liability upon the county for failure to remove snow from median strips near intersections would be contrary to public policy, citing Walker v. Bignell, 100 Wis.2d 256, 301 N.W.2d 447 (1981). The court stated the responsibility of removing such mounds from intersections would be a virtually impossible one for the county to fulfill and that the costs of such an undertaking may well result in an "inadequate partial program" as far as the county's removal of snow from the traveled portions of the roadways.
The Sanems subsequently appealed to the court of appeals, arguing that the trial court erred in dismissing their complaint, based upon the premise that the county had no legal duty of reasonable care in choosing where to deposit snow and ice it had removed from adjacent highways and, thus, could not be held liable for its negligence. The court of appeals affirmed the trial court in Sanem v. Home Ins. Co., 112 Wis.2d 389, 332 N.W.2d 857, holding that relevant policy concerns required that there should be no common law liability upon the county for its failure to insure that highway medians are free from snow and ice obstructions. We agree with the decision reached by the court of appeals.
We are concerned with one issue in this review. It is whether the respondent county should be liable under principles of common law negligence for its failure to remove snow mounds from median strips adjacent to highway intersections.
The Sanems have argued that Ozaukee county has a common law duty to remove snow from highways in a non-negligent fashion, which includes removal of mounds placed upon median strips by the county during its plowing operations. 2 The Sanems have failed to cite any authority for this proposition; 3 however, they argue that under common law tort principles, assumed obligations must be exercised with reasonable care. Glanzer v. Shepard, 233 N.Y. 236, 239, 135 N.E. 275 (1922). Therefore, the Sanems assert that once Ozaukee county contracted with the State of Wisconsin to remove snow and ice from the highways, it must do so in a non-negligent manner. They state that it is not their contention that the county has any obligation to patrol the intersections and remove snow which has accumulated after a snowfall on median strips or banks surrounding intersections. Rather, they maintain that once the county assumes the obligation of removing snow from the highways, it must utilize reasonable care to do so and that creating large mounds of snow on median strips adjacent to intersections which subsequently obstruct drivers' vision does not satisfy this standard of reasonable care.
The county, on the other hand, argues that the trial court and court of appeals correctly utilized the case of Walker v. Bignell, 100 Wis.2d 256, 301 N.W.2d 447, in order to determine that public policy considerations favor no liability on the county's part for injuries resulting from the county's failure to maintain intersections which are obstructed by snow mounds on adjacent medians.
Since Holytz v. Milwaukee, 17 Wis.2d 26, 115 N.W.2d 618 (1962), where municipal tort immunity was abrogated, municipalities have had the common law duty to conduct certain ministerial functions in a non-negligent manner. The Holytz decision applied the abrogation of immunity to the state, counties, cities, villages, towns, school districts, drainage districts, etc. Id. at 40, 115 N.W.2d 618. Subsequent cases have reiterated this common law duty. See, Stippich v. Milwaukee, 34 Wis.2d at 270, 149 N.W.2d 618, which dealt with a municipality's duty to use reasonable care to maintain its sidewalks in a reasonably safe condition for the travel of pedestrians. Therefore, we are no longer concerned with blanket immunity on the county's part and, thus, begin our discussion with an analysis of negligence law.
As this court has often stated, the elements of negligence are
"(1) A duty of care on the part of the defendant; (2) a breach of that duty; (3) a causal connection between the conduct and the injury; and (4) an actual loss or damage as a result of the injury." Coffey v. Milwaukee, 74 Wis.2d 526, 531, 247 N.W.2d 132 (1976), citing Falk v. Whitewater, 65 Wis.2d 83, 85, 221 N.W.2d 915 (1974), and Padilla v. Bydalek, 56 Wis.2d 772, 776, 203 N.W.2d 15 (1973).
Negligent conduct is an essential element of a cause of action. In Morgan v. Pennsylvania General Ins. Co., 87 Wis.2d 723, 732, 275 N.W.2d 660 (1979), the court defined negligent conduct by quoting from Restatement (Second) of Torts, section 284(a) (1965), as follows:
" 'an act which the actor as a reasonable man should recognize as involving an unreasonable risk of causing an invasion of an interest of another.' "
The court further observed that the test of negligence is whether the conduct complained of foreseeably creates an unreasonable risk to others. This risk does not have to be a particular plaintiff, and the test is whether the conduct creates an unreasonable risk to the world at large. This is a jury question. Morgan v. Pennsylvania General Ins. Co., 87 Wis.2d at 732, 275 N.W.2d 660.
This court has also acknowledged that legal cause in negligence consists of two parts, the first being cause-in-fact, the second "proximate cause." Regarding the first component, or cause-in-fact, this court has stated that the test is whether the negligence was a "substantial factor" in producing the plaintiff's injury. Morgan v. Pennsylvania General Ins. Co., 87 Wis.2d at 735, 275 N.W.2d 660. This is normally a jury question.
Because this case involves a dismissal pursuant to § 802.06(2)(f), Stats., the factual allegations in the complaint must be accepted as true, while the legal conclusion of negligence need not be accepted as true. Hartridge v. State Farm Mut. Auto. Ins. Co., 86 Wis.2d 1, 4, 271 N.W.2d 598 (1978). The factual allegations are that Ruth Sanem was traveling eastbound on highway 84 and that she was unable to observe any northbound traffic on highway 57 because the county had created a large snow mound on the median which obscured her vision. As a result, when she attempted to travel across the northbound lanes of highway 57, her vehicle was struck by an oncoming car. We also observe that the county undertook to clear these highways of snow.
As Dean Prosser has stated concerning the undertaking to render services gratuitously or for consideration,
"Where performance clearly has been begun, there is no doubt that there...
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