Schicker v. Leick

• Decision Date: 29 October 1968
• Citation: 162 N.W.2d 66,40 Wis.2d 295
• Parties: Joseph SCHICKER d/b/a Schicker Livestock Transport Co., Plaintiff-Respondent, v. Sylvester LEICK, Defendant-Appellant, Lawrence G. Brienan et al., Defendants-Respondents.
• Court: Wisconsin Supreme Court

Page 66

162 N.W.2d 66

40 Wis.2d 295

Joseph SCHICKER d/b/a Schicker Livestock Transport Co. Plaintiff-Respondent, v. Sylvester LEICK, Defendant-Appellant Lawrence G. Brienan et al., Defendants-Respondents.

Supreme Court of Wisconsin.

Oct. 29, 1968.

Byrne, Bubolz, Spanagel & Pfankuch, Ruth J. Weber, Appleton, for defendant-appellant.

Holden, Halvorsen & Bjork, Sheboygan, for plaintiff-respondent.

Klueter, Larson & MacKenzie, Wausau, for defendants-respondents.

HANLEY, Justice.

The issue before us on this appeal is whether the liability of Sylvester Leick can be determined by summary judgment.

In Bolen v. Bolen (1968), 39 Wis.2d 91, 94, 158 N.W.2d 316, 317, this court most recently discussed summary judgment:

'Summary judgment is a drastic remedy. But where there is no issue of fact that should be tried or where there is an issue of law that can be determined so recently discussed summary judgment:

'Summary judgment is a drastic remedy as to conclude the case, summary judgment should be used. * * *'

Here we must determine whether under any construction of the facts contained in the affidavits submitted, the defendant can be held to owe a duty to suers of the highway.

Every cause of action in tort must have three elements: A duty; a breach of that duty; and resulting damages. Whether there is a duty is a question of law for the court. Here the facts which allegedly lead to the duty are agreed upon. ¹ Consequently a question solely of law is presented to the court. Summary judgment is a proper remedy since a decision by this court that no duty arises out of the submitted facts would terminate this lawsuit. If we determine that a duty does exist, the factual questions relating to breach of duty and damages remain to be decided at trial.

It is defendant Leick's contention that he was entitled to use the public highways as a member of the general public and that he had no duty to prevent or to remove or to warn of the presence of dirt falling from the wheels of his vehicle onto the highway.

Plaintiff, on the other hand, contends that a duty arises from two sources:

1. Sec. 346.94(5), Stats., ² and

2. The common law.

Statutory Duty.

This court in a footnote to Kalkopf v. Donald Sales and Manufacturing Company (1967), 33 Wis.2d 247, 147 N.W.2d 277, indicated that sec. 346.94(5), Stats., was a safety statute in respect to the interest protected, namely, "vehicle or part thereof." In that opinion the court stated at page 257, 147 N.W.2d at page 282:

'* * * The purpose of the statute was to protect vehicles or parts of vehicles from foreign substances on the highway * * *.'

Violation of a safety statute can be negligence per se. Kalkopf v. Donald Sales and Manufacturing Company, supra; Restatement, Torts 2d, pp. 25--32, secs. 286 and 288; 2 Harper and James, Law of Torts, p. 997, sec. 17.6. Similarly, if a person violating the safety statute was in a class of persons that the safety statute sought to regulate, that person should be held to have a duty to the class of persons or the type of property which the safety statute seeks to protect.

Here the safety statute specifically states that 'no person' is the class of persons whose conduct the statute seeks to regulate. It further states that 'vehicle or part thereof' is the type of property which the statute seeks to protect. 'No person' obviously includes the appellant here.

Before this statute creates a duty, however, it must be determined that mud is a substance foreign to a highway and that mud 'is or may be injurious to any vehicle or part thereof.'

In Cable v. Marinette County (1962), 17 Wis.2d 590, 592, 117 N.W.2d 605, 607, this court considered whether 'loose dirt which varied from nothing to two inches in depth' constituted an insufficiency in the condition of the highway. It was held that the determination of an insufficiency was generally a question of fact for the jury.

We could likewise hold that it is a jury question whether mud is a substance foreign to a highway. Whether or not mud is a foreign substance would seem to depend upon weather conditions, location of the highway (city or rural), surface of the highway, or any other similar condition. However, we think that as a matter of law, mud could not be a substance foreign to a highay in a rural area.

We conclude that sec. 346.94(5), Stats., does not create a statutory duty in this type of situation under any circumstances. We believe this section should be limited to foreign substances causing direct injury to vehicles, such as glass, nails, large stones, and similar substances. It would create an unreasonable burden for farmers and others if any mud deposited on a highway led to liability.

Common Law Duty.

We find one case which squarely considered the duty of an abutting landowner to the other users of the highway where mud was deposited on the pavement. In Welch v. Amalgamated Sugar Company (D.C. Idaho 1957), 154 F.Supp. 3, the defendant operated a beet dump. The surface of the highway adjacent to the exit of the beet dump was covered with mud. The plaintiff alleged that the mud had been dropped on the highway by the trucks which left defendant's property and that a subsequent rain had created a slippery condition which caused the plaintiff to lose control of his vehicle and sustain damages. The defendant moved for summary judgment. In denying the defendant's motion the court stated:

'The first, second, third, and fifth grounds of defendant's motion, all, in effect, raise the question of whether the defendant had the duty to maintain the surface of the property at its beet dump in such a condition as to avoid creating a hazard to traffic on the abutting highway. If the defendant had no such duty to travelers on the highway, then the plaintiff has failed to state a claim upon which relief can be granted and the defendant's motion must be granted.

'* * *

'The duty of the abutting owner to travelers on the highway has been characterized in Vol. 2, Shearman & Redfield, Negligence, sec. 346, as follows:

"The owner, much less a mere occupant, of land fronting on a highway owes no duty, as such, to repair any part of the highway, or otherwise make it safe for travel. * * *

"The extent of his (abutter's) obligation, with reference to adjacent highways, is to use and keep his own premises so as not to render such highways unsafe for ordinary travel, culpably failing in which he is liable to travelers thereon.'

'The alleged facts here, if true, would constitute a use of the defendant's premises by the defendant so as to render the abutting highway unsafe to...