Plaintiffs Donna Foss (Foss) and the Estate of John Norship (Norship) appeal from orders entered by the circuit court for Marathon county, setting aside the jury verdict and granting defendants George Babl, Inc. (Babl) and Sentry Insurance (Sentry) a directed verdict and granting the defendants Town of
At about midnight on April 27, 1974, Norship and Foss, a passenger on Norship's motorcycle, rode over an embankment in the Town of Kronenwetter, at what the defendants maintain was the end of Nelson Road and at what the plaintiffs maintain was a construction site for a westerly extension of Nelson Road. The motorcycle landed in a low swamp about twenty feet below the embankment. Norship was killed and Foss sustained injuries. Defendant Babl dumped fill at the edge of and over the embankment about five months before the accident.
At those times, Nelson Road was an unpaved town road, running west from old Highway 51 for three-tenths of a mile. The intersections of old 51 and West Nelson Road was lighted and a yellow dead-end sign was bolted to the back of the stop sign at the intersection. The sign was on the left side of the road facing traffic proceeding from old 51 onto West Nelson Road toward the accident site. At the dumping site, before the drop-off, there was an unpainted steel barricade attached to two wooden posts. At trial the testimony was in conflict as to whether the barricade posts were in the ground and whether there were any reflectors on the barricade at the time of the accident.
The Town had authorized a westerly extension to Nelson Road at its annual meeting in April, 1974, on land dedicated to the Town in 1964. When Babl dumped the fill at the end of the road in December, 1973, the barricade had been removed by Ben Jansen, an owner of property north of Nelson Road, with the acquiescence of the Town. After Babl completed its dumping, the Town's grader leveled off the dumped material. Jansen and the
Foss and Norship brought actions against the Town, Babl, their respective insurers, and against Ben Jansen. The jury apportioned negligence as follows: Town, 65%; Norship, 25%; Foss, 5%; Babl, 5% and Jansen 0%. The trial court granted Babl a directed verdict dismissing Foss's complaint, denied the Town a directed verdict, but granted the Town a new trial on liability. Also denied was the Town's motion to reduce Foss's damages by $10,000, the amount Foss received under a group health and accident insurance policy.
The following issues are before this court on appeal:
(1) Whether the Town was entitled to a directed verdict.
(2) Whether the Town is entitled to a new trial on liability as ordered by the trial court.
(3) Whether Babl was entitled to a directed verdict against Foss.
(4) Whether the collateral source rule precludes reduction of the jury damage award by the amount of payments received by Foss under a group health and accident insurance policy.
Directed Verdict for Town
The Town moved for a directed verdict before the case was submitted to the jury, and renewed its motion after the jury had attributed 65% of the causal negligence to it. The trial court denied the motion on the ground that there was sufficient evidence to support a finding of negligence in failing to warn or properly barricade the end of Nelson Road, but did grant the Town's motion for a new trial on liability.
The test for whether a directed verdict should have been granted is the same whether the decision is made before or after submission to the jury. If in the light most favorable to the plaintiffs, there is any evidence, other than mere conjecture or incredible evidence to sustain the plaintiffs' causes of action and a verdict against the Town, then the decision was for the jury and the trial court properly denied the Town's motions.
The complaints allege a breach of the Town's common law duty to warn of the dead end of Nelson Road,
The Town's duty to warn arises from the state of development of Nelson Road and of the surrounding residential area
If a properly instructed jury could reasonably find a causal breach of the Town's duty, such negligence is not necessarily actionable. The Town's negligence is actionable
The plaintiffs do not cite and our research does not reveal any cases holding a lack of adequate warning of a dead end is an insufficiency or want of repair of a highway.
Sec. 895.43 (3), Stats., confers statutory immunity on municipalities and their officers for acts done in the exercise of specified discretionary functions. In a series of cases involving immunity with respect to highway signs,
In the present case, the plaintiffs allege negligence in the placement of the dead and sign and in the maintenance of the barrier, both as to reinstallation and as to
In sign maintenance cases
The court has proscribed judicial second-guessing where an examination of the relevant statutes or administrative rules revealed an express
Norship contends improper sign placement is actionable pursuant to Chart, supra, note 18, where state highway officials were held amenable to suit for sign placement inconsistent with the Uniform Manual.
Nevertheless, the negligent reinstallation of the barrier and maintenance without reflectors or their equivalent, if found by the jury, is actionable.
This result is entirely consistent with the policy underlying immunity for the exercise of quasi-legislative and other similar functions. The record here and the facts of other maintenance cases disclose no authorized planning within guidelines set by state or local legislative bodies. Moreover, there is no basis for inferring such discretion was in fact exercised.
The Town not being entitled to immunity as to negligent maintenance of the barrier, and jury questions being presented on the Town's causal negligence, the Town was not entitled to a directed verdict.
New Trial for the Town
The jury found 65% of the causal negligence was attributable to the Town and 25% and 5% of the causal
The trial court instructed the jury:
(I)t shall be unlawful for . . . any person to leave any materials in the traveled portion of any highway not closed to public travel in piles or rows without placing within one hour after sunset upon such piles or at the end of such rows a lighted lantern containing sufficient oil or fuel to keep the same burning until daylight.
The Town did authorize the extension of Nelson Road beyond the accident site at a town meeting held before the accident. Trees had been cleared from the right-of-way by a landowner several months before the town meeting. Dumping had occurred at the initiative of other parties, apparently with the permission of the Town about four months before the town meeting. At the time of the dumping, a Town grader leveled off the fill and the town chairman assisted in replacing the barricade. The plaintiffs argue that these events transformed the authorized extension to Nelson Road beyond the old embankment into a "traveled portion" of a "highway not closed to the public," thus triggering the statutory duty for the Town to place smudge pots at the site. As the jury was instructed, based on sec. 340.01 (22), Stats., "highway" includes "the entire width .. . of every way
An instruction must be warranted by the evidence and should not be given where the evidence does not support it.
Our review of the record satisfies us that the plaintiffs failed to establish the rubble was on a "traveled portion" of Nelson Road so as to entitle them to the disputed instruction.
Another instruction informed the jury that: "(N)o one shall willfully place any obstruction in any public highway which impedes use of such highway . . . (and) it is not necessary that the obstruction actually be on the
The Town also contends that use of the Uniform Manual, supra, note 25, was prejudicial error. Upon review of the record, even though neither the Town nor Babl had a duty to post construction warning signs, we cannot say the trial court abused its discretion in permitting cross-examination concerning uniform construction warning signs.
Directed Verdict for Babl
Babl also moved for a directed verdict before the case was submitted to the jury and renewed its motion after the jury had attributed 5% of the causal negligence to Babl. The trial court then granted Babl's motion and dismissed the complaints as to Babl. Foss argues that the directed verdict was erroneous and the jury verdict should be reinstated. We affirm the dismissal of Babl.
From our holding above that the instructions based on secs. 86.01 and 86.022, Stats., were in error, it follows that Babl could not have breached such statutory duties. These statutes create no duty by Babl in light of the evidence most favorable to Foss. It remains to be determined whether Babl had a common law duty and, if so, whether any evidence other than mere conjecture tends to establish a breach of such duty.
Babl did dump several loads of fill over the embankment at the end of Nelson Road during a three-day period five months before the accident, but did not remove the barricade to facilitate such dumping, and did not undertake to replace the barricade. Babl had no contract with the Town for construction of an extension to Nelson Road. Foss argues Babl had a duty to inquire as to the ownership of the dumping site and elicited testimony that had Babl known the dumping site was a dedicated
Babl's acts or omissions having created no foreseeable or unreasonable risk of harm to others, we hold that, under the circumstances present here, Babl did not breach its duty of ordinary care.
Babl not having breached its duty of ordinary care, therefore being not negligent, we sustain the trial court's order dismissing Foss's complaint as to Babl.
The Town contends the jury's damage award should be reduced by the amount of the payments to Foss for her medical expenses under a group health and accident insurance policy. Rixmann v. Somerset Public Schools,
By the Court.—Judgment and orders affirmed.
If damages happen to any person . .. by reason of the insufficiency or want of repairs of any highway which any town . . . is bound to keep in repair, the person sustaining such damage shall have the right to recover the same from such town. .. .
The standard jury instruction, Wis. JI—Civil 1029 (1974), based on sec. 81.15, was requested by the plaintiffs Foss and Norship and given by the trial court. The Town did not object and no party requested an instruction which explained the Town's common law duty as distinguished from its lack of immunity for negligence upon certain findings under sec. 81.15. Stats.
The question of whether a municipality is liable for highway-related negligence pursuant to sec. 81.15 is generally a jury question. See e.g., Cable v. Marinette County, 17 Wis.2d 590, 117 N.W.2d 605, 608 (1962); Becker v. City of La Crosse, 9 Wis.2d 540, 101 N.W.2d 677 (1960); Keller v. City of Port Washington, 200 Wis. 87, 227 N.W. 284 (1929); Branegan v. Town of Verona, supra, note 5. But see Weiss v. City of Milwaukee, infra, note 20; Dusek v. Pierce County, infra, note 20; But cf. Loehe v. Village of Fox Point, 253 Wis. 375, 34 N.W.2d 126 (1948) (reversing the denial of summary judgment by the trial court).
(N)or shall any suit be brought against such . . . corporation, subdivision or agency or against its officers, officials, agents or employees for acts done in the exercise of legislative, quasilegislative, judicial or quasi-judicial functions.
Generally, whether a municipality is entitled to immunity under sec. 895.43(3), Stats., is a question of law for the court. Jorgenson v. Northern States Power Co., 60 Wis.2d 29, 208 N.W.2d 323, 328 (1973). But cf. Cords v. Ehly, 62 Wis.2d 31, 214 N.W.2d 432 (1974) (question of fact whether alleged negligence by named DNR officials was in performance of ministerial duties); Chart v. Dvorak, infra, note 18 (question of fact whether named state Department of Transportation officials had improperly placed warning signs and thereby negligently performed ministerial duties). See also Pavlik v. Kinsey, infra, note 20.
"Local authorities" include towns. Sec. 340.01 (26), Stats. Before January 1, 1977, only new signs placed or maintained by local authorities after the adoption of the Manual by the Highway Commission were required to conform with the Manual. The Manual (1973 ed.) was adopted pursuant to sec. 84.02(4) (e) on September 19, 1974. Highway Commission Minutes (Sept. 19, 1974).
Compare Chart v. Dvorak, supra, note 18, 203 N.W.2d at 677 n. 5 (construing secs. 84.02(4) (c) & (d), 349.08, Stats. (1959) regarding applicability of the manual on state trunk highway system).