Walker v. Bignell

• Decision Date: 02 February 1981
• Docket Number: No. 79-1674,79-1674
• Citation: 100 Wis.2d 256,301 N.W.2d 447
• Parties: , 22 A.L.R.4th 611 Julie A. WALKER, Dennis C. Walker and Jason Walker, by his guardian ad litem, C. L. Gaylord, Plaintiffs-Appellants-Petitioners, v. Bryan S. BIGNELL, Ann Bignell, Mutual Service Insurance Company, a foreign corporation, Defendants, Pepin County, a Wisconsin municipal corporation, Employers Mutual Liability Insurance Company of Wisconsin, a Wisconsin corporation, Waterville Township, a Wisconsin municipal corporation, Elwood Myers and Francis Sam, Defendants- Respondents.
• Court: Wisconsin Supreme Court

Page 447

301 N.W.2d 447

100 Wis.2d 256, 22 A.L.R.4th 611

Julie A. WALKER, Dennis C. Walker and Jason Walker, by his guardian ad litem, C. L. Gaylord Plaintiffs-Appellants-Petitioners, v. Bryan S. BIGNELL, Ann Bignell, Mutual Service Insurance Company, a foreign corporation, Defendants Pepin County, a Wisconsin municipal corporation, Employers Mutual Liability Insurance Company of Wisconsin, a Wisconsin corporation, Waterville Township, a Wisconsin municipal corporation, Elwood Myers and Francis Sam, Defendants- Respondents.

No. 79-1674.

Supreme Court of Wisconsin.

Argued Jan. 6, 1981.

Decided Feb. 2, 1981.

Stuart J. Krueger, River Falls, argued for plaintiffs-appellants-petitioners; C. M. Bye and Gaylord, Bye, Rodli & Krueger, S. C., River Falls, on brief.

Dane F. Morey, Durand, argued for defendants-respondents, Waterville Township and Francis Sam; Whelan, Morey, Ricci & Chambers, S. C., Durand, on brief.

Douglas M. Johnson, Eau Claire, argued for other defendants-respondents; Garvey, Anderson, Kelly & Ryberg, S. C., Eau Claire, on brief.

CALLOW, Justice.

This is a review of a decision of the court of appeals which affirmed an order granting summary judgment entered by the circuit court for Pepin County, the Hon. Gary B. Schlosstein presiding, in favor of the defendants Pepin County and Waterville Township.

This action was commenced by the plaintiffs to recover damages for personal injuries sustained by Julie Walker and her son Jason in an automobile accident on July 10, 1978, near the intersection of Pepin County Highway P and South Kirk Road, a town road located in Waterville Township, Pepin County, Wisconsin. The Walkers, traveling westbound on Highway P in a vehicle being operated by Mrs. Walker, were struck by a vehicle operated by defendant Bryan S. Bignell which had turned left from South Kirk Road onto Highway P eastbound. In their amended complaint the plaintiffs alleged that the areas adjacent to County Highway P and South Kirk Road were so overgrown with weeds that the view of the intersection by approaching drivers was obstructed and that the two municipal defendants and their agents were negligent in failing to keep those areas free from visual obstructions.

The municipal defendants moved for summary judgment on the ground that a municipality has no duty to cut weeds and brush on the untraveled portions of roadways in order to assure roadway users a clear view at intersections. The circuit court granted the motion, concluding that there existed neither a statutory nor a common law duty to cut roadside weeds to provide unobstructed vision and that the municipalities had not assumed such a duty because of the weed control program followed annually by Pepin County officials. The court of appeals affirmed, concluding that neither sec. 66.96(2) ¹ nor sec. 81.15, ² Stats., imposed upon municipalities a duty to cut roadside vegetation to assure unobstructed vision at intersections, and further that no duty to do so exists at common law. Walker v. Bignell, 96 Wis.2d 471, 292 N.W.2d 355 (Ct.App.1980). Although we agree with the court of appeals, we reverse and remand for further proceedings on the question of the municipalities' liability under a statute not considered by the courts below.

We perceive two issues before us on this review:

I. Whether the defendant municipalities and their agents are subject to liability for failing to keep weeds and brush trimmed at highway intersections under principles of common law negligence; and

II. Whether the defendant municipalities and their agents are subject to civil liability for injuries caused by their failure to trim right-of-way vegetation in violation of sec. 80.01(3), Stats. ³

I.

The plaintiffs argue that the defendant municipalities have a nonstatutory duty to maintain the nontraveled portions of highway rights of way in such a manner as to permit motorists an unobstructed view of highway intersections. Although unable to cite any case authority from this jurisdiction in support of that proposition, they contend that such a duty may be inferred from prior cases dealing with municipal tort liability. Initially the plaintiffs argue that, after this court's decision in Holytz v. Milwaukee, 17 Wis.2d 26, 115 N.W.2d 618 (1962), which abrogated the general role of governmental immunity from tort liability, "(m)unicipalities now had a common law duty to conduct their ministerial functions in a non-negligent manner." They then cite Stippich v. Milwaukee, 34 Wis.2d 260, 149 N.W.2d 618 (1967), as illustrative of the principle that municipalities have certain common law duties which may subject them to tort liability. In Stippich this court held that a municipality may be liable on a negligence theory for unsafe conditions of sidewalks that would not have been considered defects under the statute which had limited municipal liability for highway defects prior to the Holytz decision. Concluding that there is in this state no particular bar to this court finding a duty upon the municipalities to cut intersection vegetation, the plaintiffs cite Stewart v. Lewis, 292 So.2d 303 (La.App.1974), in which the Louisiana court of appeals concluded that a county highway department was negligent in failing to cut intersection vegetation in order to provide a clear view, and urge us to hold likewise.

The defendant municipalities respond that the prevailing weight of judicial authority favors no municipal liability for injuries caused by a failure to keep roadside vegetation trimmed in the absence of a statute so providing. Boyle v. City of Phoenix, 115 Ariz. 106, 563 P.2d 905 (1977); Bohm v. Racette, 118 Kan. 670, 236 P. 811 (1925); Owens v. Town of Booneville, 206 Miss. 345, 40 So.2d 158 (1949); Belt v. City of Grand Forks, 68 N.W.2d 114 (N.D.1955); Sylor v. Irwin, 308 N.Y.S.2d 937, 62 Misc.2d 469 (1970); Zupancic v. City of Cleveland, 58 Ohio App.2d 61, 389 N.E.2d 861 (1978); McGough v. Edmonds, 1 Wash.App. 164, 460 P.2d 302 (1969); Bradshaw v. Seattle, 43 Wash.2d 766, 264 P.2d 265 (1953); Barto v. King County, 18 Wash.2d 573, 139 P.2d 1019 (1943). See also : 4 Blashfield, Automobile Law and Practice, sec. 163.13, 386 (3d Ed. 1965); Annot., 42 A.L.R.2d 817 (1955); 39 Am.Jur.2d Highways, Streets, and Bridges, sec. 462 (1968). Contra: Mauthe v. Gibson, 367 So.2d 1280 (La.App.1979); Stewart v. Lewis, supra; Jezek v. City of Midland, 605 S.W.2d 544 (Tex.1980). Principal reliance is placed upon the Boyle decision, in which a minor plaintiff bicyclist, struck by a car at an intersection, claimed his view of cross traffic at the interaction was impaired by vegetation which had grown up in the dedicated right of way adjacent to the traveled portion of the roadway. In affirming a grant of summary judgment in favor of the defendant municipalities, the court stated:

"(2) In order to find the defendant cities liable, the plaintiff must prove the three elements of actionable negligence: 1) a duty owed to the plaintiff, 2) a breach thereof and 3) an injury proximately caused by the breach. Massengill v. Yuma County, 104 Ariz. 518, 456 P.2d 376 (1969). The defendants rightly contend that as a matter of law they owed no duty to the plaintiff." Boyle v. City of Phoenix, supra at 107, 563 P.2d 905.

Using the Boyle Case as authority for the proposition that no duty exists to cut roadside vegetation in order to provide motorists a clear view at intersecting highways, the defendant Pepin County argues that, under the Wisconsin formulation of the elements of a cause of action in negligence, i. e., duty, breach, causation, and damage, the plaintiffs' action is defeated as the threshold for want of a duty to breach. This is the approach taken by the court of appeals which concluded there existed no duty on the municipal defendants to cut intersection vegetation to improve visibility, and "(a)s there is no duty, there can be no liability." Walker v. Bignell, 96 Wis.2d at 475, 292 N.W.2d 355.

This court on a number of occasions has discussed the somewhat elusive concept of "duty." In Ollerman v. O'Rourke Co., Inc., 94 Wis.2d 17, 27-28, 288 N.W.2d 95 (1980), quoting from Klassa v. Milwaukee Gas Light Co., 273 Wis. 176, 183-84, 77 N.W.2d 397 (1956), this court repeated the words of Dean Prosser:

" 'There is a duty if the court says there is a duty; the law, like the constitution, is what we make it. Duty is only a word with which we state our conclusion that there is or is not to be liability; it necessarily begs the essential question. When we find a duty, breach, and damage, everything has been said. The word serves a useful purpose in directing attention to the obligation to be imposed upon the defendant, rather than the causal sequence of event; beyond that it serves none.' " (Emphasis in original.) 94 Wis.2d at 28, 288 N.W.2d 95.

In this case "duty" is used in two respects which should be distinguished before the principal issue can be resolved. It is claimed there is or should be an affirmative duty on Wisconsin municipalities to cut weeds to provide visibility at highway intersections. Duty in this sense refers to an affirmative obligation imposed by law to do a particular thing, to perform a particular act. It is a requirement of specific conduct. Dean Prosser notes that the courts of common law generally have been reluctant to impose obligations of affirmative conduct upon others. Prosser, Law of Torts, sec. 56, 338-40 (4th ed. 1971). But this is a negligence suit, and the parties have spoken of duty in a second respect: the defendants' duty of reasonable care. Although we have stated that one's duty to exercise reasonable care must be attached to some other conduct, Fitzgerald v. Ludwig, 41 Wis.2d 635, 638, 165 N.W.2d 158 (1969), the essence of that duty is not to do, or refrain from doing, a particular act, but rather to act in a particular way to exercise reasonable care whenever it is foreseeable that one's conduct may cause harm to another. Coffey v....