Totsky v. Riteway Bus Service, Inc.

• Decision Date: 28 March 2000
• Docket Number: No. 97-0530.,97-0530.
• Citation: 233 Wis.2d 371,2000 WI 29,607 N.W.2d 637
• Parties: Gustave Jeffrey TOTSKY, a/k/a G. Jeffrey Totsky and Kristine Totsky, Plaintiffs-Respondents-Petitioners, v. RITEWAY BUS SERVICE, INC., Sharon Y. Williams and National Continental Insurance Co., an Ohio Corporation, a part of the Progressive Insurance Group, Defendants-Appellants, WISCONSIN PHYSICIANS SERVICE INSURANCE CORP., a Wisconsin Corporation and Quad/Med Claims, Quad/Graphics, Inc., Defendants, MAXICARE HEALTH INSURANCE COMPANY, a California Corporation, Defendant-Respondent, CITY OF MILWAUKEE and State Farm Mutual Automobile Ins., Respondents.
• Court: Wisconsin Supreme Court

233 Wis.2d 371

2000 WI 29

607 N.W.2d 637

Gustave Jeffrey TOTSKY, a/k/a G. Jeffrey Totsky and Kristine Totsky, Plaintiffs-Respondents-Petitioners, v. RITEWAY BUS SERVICE, INC., Sharon Y. Williams and National Continental Insurance Co., an Ohio Corporation, a part of the Progressive Insurance Group, Defendants-Appellants, WISCONSIN PHYSICIANS SERVICE INSURANCE CORP., a Wisconsin Corporation and Quad/Med Claims, Quad/Graphics, Inc., Defendants, MAXICARE HEALTH INSURANCE COMPANY, a California Corporation, Defendant-Respondent, CITY OF MILWAUKEE and State Farm Mutual Automobile Ins., Respondents.

No. 97-0530.

Supreme Court of Wisconsin.

Oral argument October 12, 1999.

Decided March 28, 2000.

For the plaintiffs-respondents-petitioners there were briefs by Robert C. Angermeier, Mark J. Rogers and Angermeier & Rogers, Milwaukee, and oral argument by Mark J. Rogers.

For the defendants-appellants there were briefs by Vicki L. Arrowood and Kasdorf, Lewis & Swietlik, S.C., and Emile H. Banks, Jr., Yolanda Y. McGowan and Emile Banks & Associates, LLC, all of Milwaukee, and oral argument by Emile H. Banks, Jr.

For the respondent, City of Milwaukee, there was a brief by Ellen H. Tangen, assistant city attorney, with whom on the brief was Grant F. Langley, city attorney.

¶ 1. N. PATRICK CROOKS, J. G.

G. Jeffrey Totsky and Kristine Totsky, the petitioners, seek review of a published decision of the court of appeals, Totsky v. Riteway Bus Serv. Co., 220 Wis. 2d 889, 894, 584 N.W.2d 188 (Ct. App. 1998), which reversed a Milwaukee County Circuit Court judgment. The judgment vacated a jury verdict that found a Riteway school bus driver was not negligent in going through a stop sign, a violation of Wis. Stat. § 346.46(1)(1991-92).¹ The jury was instructed on the emergency doctrine as set forth in Wis JI — Civil 1105A. It apparently accepted the emergency doctrine in finding no negligence in the actions of the bus driver, Sharon Y. Williams, who skidded through the stop sign when the bus hit a patch of ice. In skidding through the stop sign, Williams' bus collided with Jeffrey Totsky's vehicle. After the jury found Williams was not negligent, the circuit court, the Honorable Michael W. Skwierawski presiding, entered a judgment in favor of the Totskys on their renewed motion for directed verdict and conditionally granted a new trial.

¶ 2. The court of appeals reversed, holding that "the emergency doctrine can apply [in a negligence per se action] if a violation of the safety statute is caused by a loss of management and control through no fault of the driver, presuming the other requirements for invoking the emergency doctrine are met." Totsky, 220 Wis. 2d at 903. The court of appeals also held that credible evidence supported the "application of the emergency doctrine in this case." Id. at 904. We affirm the court of appeals' decision. The emergency doctrine applies to a violation of Wis. Stat. § 346.46(1) under the facts of this case, because a violation of § 346.46(1) is concerned with an issue of management and control. We further hold that two of the subrogated parties in this case, the city of Milwaukee and Maxicare Health Insurance Corporation, were not required to file a separate petition for review to preserve their subrogated interests on appeal, because they stipulated to waive their rights to participate at trial and to be bound by the judgment. However, State Farm Mutual Automobile Insurance, which did not enter into such a stipulation, was required to file an individual petition for review to preserve on appeal its subrogated interest, which is separate from the Totskys' claim.

I.

¶ 3. This case revolves around an accident where a bus skidded through an intersection on ice and collided with another car. The accident occurred just before 7:00 a.m. on February 10, 1993, at the intersection of Morgan Avenue and 80th Street in the city of Milwaukee. Morgan Avenue is an arterial roadway and does not contain any stop signs where it intersects 80th Street. A stop sign controls the northbound lane of 80th Street. Jeffrey Totsky (Totsky) was driving to work heading east on Morgan Avenue. At that same time, Sharon Williams (Williams) was driving a Riteway school bus north on 80th Street.

¶ 4. Williams began work that day at 6:00 a.m. Before leaving the bus yard, she checked the general condition of the bus, including the brakes, and was satisfied that the bus was working properly. Williams noticed that the roads looked damp, but she knew that some ice existed on the roads as well. She was on her first route to pick up children when she initially skidded. Her bus skidded a couple of times, but each time, she apparently could see the ice on the road before she encountered the skid. The first encounter on the ice caused the bus to slide to the side approximately one or two feet. The second skid was similarly minimal.

¶ 5. Totsky noticed that the road looked wet as he left for work, but he did not skid before the accident or encounter slippery conditions. He also testified at the trial that the road did not look slippery near where the bus stopped after the accident; it just looked wet.

¶ 6. Williams saw the stop sign for northbound traffic as she approached the intersection of 80th Street and Morgan Avenue. When she was approximately 100 feet from the stop sign, she began to apply her brakes. She estimated at trial that she was travelling at about 12-14 miles per hour² when she began to apply the brakes, and that the road looked wet, not icy.³ The bus began to skid when Williams braked. As the bus skidded, she pumped the brakes and tried to turn the wheel of the bus into the skid. However, she was unable to stop the bus. Robert Krenz, Riteway's expert, estimated that when Williams began to skid, the bus was travelling between 16-23 miles per hour, and struck the Totsky vehicle at a speed between 11-16 miles per hour.

¶ 7. The bus skidded completely through the parking lane and into the intersection. Totsky saw the bus skidding through the intersection and accelerated in an attempt to avoid a collision. The bus struck Totsky's vehicle on the right rear corner, denting the right rear fender. Upon impact, Totsky's vehicle went into a spin turning clockwise, only stopping when it struck a signpost broadside. Krenz estimated that Totsky was driving at 8-12 miles per hour when his vehicle hit the signpost.

¶ 8. When the bus hit the car, Totsky was knocked out of the shoulder harness into the passenger seat, but the lap belt still secured his hips and legs. He attempted to sit up and counter-steer out of the spin, but as the vehicle hit the curb and signpost, his head and body slammed into the left front door. Totsky almost immediately felt pain in his back, for which he later took painkillers and muscle relaxants. He ultimately completed three months of therapy, was treated by several doctors, and missed eight months of work. ¶ 9. Williams had picked up two⁴ children prior to the accident, but neither Williams nor the children was injured during the collision.

¶ 10. The Totskys sued Riteway. Before the trial, both Maxicare Health Insurance Corporation (Maxicare) and the city of Milwaukee waived their right to participate at trial. However, State Farm Mutual Automobile Insurance (State Farm) did not waive its right to participate at trial.

¶ 11. In November 1996, the case was tried to a jury. At the close of the evidence, the Totskys moved for a directed verdict on the issue of Williams' negligence. The court took the motion under advisement, and permitted the case to go to the jury.

¶ 12. Among the jury instructions given were Wisconsin Civil Jury Instructions 1105 — Management and Control, 1105A — Emergency Doctrine, 1280 — Skidding, and 1055 — Lookout. The first question of the special verdict asked: "Was Sharon Williams negligent in the operation of her vehicle on February 10, 1993?" The jury responded "no." The jury also responded "no" to the third question: "Was G. Jeffrey Totsky negligent in the operation of his vehicle on February 10, 1993?" The jury thought that the following sums of money would reasonably compensate Totsky for his damages: $37,000 for past medical and hospital expenses; $60,000 for future medical and hospital expenses; $20,324 for past loss of earnings; $100,000 for loss of future earning capacity; and $50,000 for past and future pain, suffering, and disability. The jury further determined that $10,000 would reasonably compensate Kristine Totsky for the loss of consortium sustained by her.

¶ 13. Since the jury returned a verdict that neither Williams nor Totsky was negligent, the Totskys renewed their motion for a directed verdict. They also moved in the alternative for a new trial in the interest of justice and claimed that the verdict was against the weight of the evidence. Judge Skwierawski granted both motions.

¶ 14. The court granted the motion for a directed verdict for several reasons. Williams was negligent per se, the court found, since she violated a safety statute. Moreover, the court found that the emergency doctrine could not excuse Williams' negligence as this case did not solely present an issue of management and control. Finally, she was negligent as a matter of law because her excessive speed produced the emergency that she encountered, and therefore, the emergency doctrine did not apply.

¶ 15. The circuit court also conditionally granted the motion for a new trial in the event that on appeal, the court's judgment would be reversed or vacated.

¶ 16. The court of appeals reversed both of the circuit court's rulings. Totsky, 220 Wis. 2d at 894. The emergency doctrine can apply to the violation of a safety statute, which results in negligence per se, the court of appeals decided. Id. at 899. For support, it looked to La Vallie v. General Ins. Co. of Am., 17 Wis. 2d 522, 117 N.W.2d 703 (1962), in which this court applied the emergency doctrine to a violation of a safety...