holding that § 893.83 does not encompass the failure to erect proper signsSummary of this case from Bronfeld v. Pember Companies
Argued April 2, 1969. —
Decided May 6, 1969.
APPEAL from a judgment of the circuit court for Pierce county: ALBERT L. TWESME, County Judge of Trempealeau county, presiding. Affirmed.
For the appellant there was a brief by Gaylord Lindsay of River Falls, and oral argument by R. W. Lindsay.
For the respondent there was a brief by Robert J. Richardson, district attorney of Pierce county, attorney, and John W. Fetzner and Gwin, Fetzner, Richards Skow of counsel, all of Hudson, and oral argument by Mr. Richardson and Mr. John W. Fetzner.
This is an appeal from a summary judgment entered in the circuit court for Pierce county in favor of the defendant, Pierce county, dismissing the second cause of action in the plaintiff's amended complaint. The record in this case is extensive. It contains certain irregular matters, duplications, and inconsistencies, which are no doubt attributable to the fact that the case was first brought before ROBERT C. VARNUM, Circuit Judge, who died during the course of the proceedings, and the record was then completed by Judge ALBERT L. TWESME. Neither of the parties have objected to any of the irregularities in the record; and, accordingly, our review is confined solely to the judge's decision on the summary judgment.
The action arises out of an automobile accident which occurred on October 29, 1963. The automobile, which was driven by Norman Dusek, Jr., who was then twenty-one years old, collided with a dump truck owned by the defendant, Pierce county, and operated by one of its employees. The accident occurred at a T-intersection formed by a town road and county trunk highway "F." The plaintiff alleged that he was proceeding in an easterly direction on the town road, and the Pierce county dump truck was proceeding in a southerly direction on county trunk highway "F." The allegation is made that the vision was obscured by a hill to the north of the intersection and by mounds of earth, and that, in addition, there was a failure to erect signs that warned of a hazardous intersection.
Apparently of natural origin.
Two causes of action were alleged. The first alleged that Pierce county was liable for the negligent operation of its dump truck by its employee. This first cause of action is apparently awaiting trial and is not at issue in this case. The second cause of action recited in the complaint states:
". . . County Trunk Highway `F', . . . is and was so constructed as to form a trap for vehicles approaching said intersection from the north as aforesaid; the said Pierce County, through its officers, employees and agents, has known of the unsafe intersection as aforesaid, or should have known of the unsafe conditions for many years, and has known or should have known of other accidents that occurred at said intersection over the years by reason of said unsafe conditions; the said Pierce County has done nothing to correct the unsafe layout and structure of said road, when it could have corrected said conditions by removing the mounds of earth bordering the road, by properly grading the hill north of the intersection, and by placing warning signs to warn users of the road of the unsafe conditions, but the said Pierce County has allowed said unsafe condition to continue without material alteration."
In his complaint plaintiff alleged that notice of injury was not given within one hundred twenty days as required by sec. 331.43, Stats. (now sec. 895.43), but was given subsequent thereto. He further alleges, however, that Pierce county was not prejudiced by the delay because it had actual knowledge of the accident.
" 895.43 Tort actions against political corporations, governmental subdivisions or agencies and officers, agents or employees; notice of injury; limitation of damages and suits. (1) No action founded on tort, except as provided in s. 345.05, shall be maintained against any volunteer fire company organized under ch. 213, political corporation, governmental subdivision or agency thereof nor against any officer, official, agent or employe of such corporation, subdivision or agency for acts done in their official capacity or in the course of their agency or employment unless within 120 days after the happening of the event causing the injury or damage or death complained of, written notice of the time, place and circumstances of the injury or damage signed by the party, his agent or attorney is served on such volunteer fire company, political corporation, governmental subdivision or agency and on the officer, official, agent or employe under s. 262.06. Failure to give the requisite notice shall not bar action on the claim if the fire company, corporation, subdivision or agency had actual notice of the damage or injury and the injured party shows to the satisfaction of the court that the delay or failure to give the requisite notice has not been prejudicial to the defendant fire company, corporation, subdivision or agency or to the defendant officer, official, agent or employe."
The defendant, Pierce county, moved for summary judgment on the ground that there were no factual issues to be tried and that the undisputed facts showed this to be an action brought under sec. 81.15, Stats., that sec. 81.15 required a timely written notice, which was not given, that actual notice was not sufficient, and that, in any event, the defendant had no duty to place warning signs at or near where the intersection occurred.
"81.15 Damages caused by highway defects; liability of town and county. If damages happen to any person or his property by reason of the insufficiency or want of repairs of any highway which any town, city or village is bound to keep in repair, the person sustaining such damages shall have a right to recover the same from such town, city or village. . . . No such action shall be maintained unless within 120 days after the happening of the event causing such damages, notice in writing signed by the party, his agent or attorney shall be given to the county clerk of the county, a supervisor of the town, one of the trustees of the village or mayor or city clerk of the city against which damages are claimed, stating the place where such damages occurred, and describing generally the insufficiency or want of repair which occasioned it and that satisfaction therefor is claimed of such county, town, city or village. . . . No action shall be maintained to recover damages for injuries sustained by reason of an accumulation of snow or ice upon any bridge or highway, unless such accumulation existed for 3 weeks."
Affidavits were submitted by both plaintiff and defendant. The trial judge granted the defendant's motion for summary judgment, dismissing the plaintiff's complaint on the ground that the undisputed facts showed that the cause of action was brought under sec. 81.15, Stats., and that statute required a written notice within one hundred twenty days and that actual notice was not in compliance with the statutory requirements.
The plaintiff has appealed from this determination.
On this appeal the plaintiff agrees that the trial judge would be correct if the action were in fact brought under sec. 81.15, Stats., which governs the bringing of actions against municipalities by reason of the "insufficiency" or "want of repair" of any highway which the town was bound to keep in repair. He acknowledges that the statute in that event requires actual written notice.
Plaintiff bases his argument on this court's decision in Holytz v. Milwaukee (1962), 17 Wis.2d 26, 115 N.W.2d 618, which abrogated the doctrine of municipal immunity. He points out that sec. 81.15, Stats., was a statutory exception to the immunity doctrine. He concedes that the plaintiff who brings a suit for highway defects that could be brought under only sec. 81.15 prior to Holytz is bound by the pre- Holytz procedural requirements of notice. He contends that sec. 895.43 was passed subsequent to Holytz and in response to it, and that this statute is applicable to acts of negligence by a municipality that are not embraced within the terms, "insufficiency," and "want of repair," and, as to those causes of action made viable by Holytz, a plaintiff is not barred by failure to give written notice, provided the defendant has actual notice and has not been prejudiced by the plaintiff's failure. Plaintiff contends that his second cause of action is based upon negligence made viable by Holytz and not contemplated by sec. 81.15.
Prior to Holytz, plaintiffs attempted to fit their fact situations to the terms of sec. 81.15, Stats., to avoid the general proscription of municipal immunity. Since Holytz, plaintiffs have attempted to avoid limitations of sec. 81.15, since, by so doing, they avoid the slightly more rigorous notice requirements. Accordingly, very different policy factors are now urged in discussing the applicability of sec. 81.15 than were urged in the pre- Holytz days.
The plaintiff on this appeal contends that a municipality may have liability for negligence in regard to highways that is broader in scope than the municipality's liability under sec. 81.15, Stats. As to the municipality's responsibility for negligence not covered by sec. 81.15, it contends that actual notice is sufficient. This court, of course, has decided that highway insufficiency and defect exception to pre- Holytz immunity did not cover all of the circumstances under which a municipal corporation can now be found liable for highway-connected negligence. We said in Stippich v. Milwaukee (1967), 34 Wis.2d 260, 266, 267, 149 N.W.2d 618:
"We think the common-law duty embraces a somewhat larger area of what constituted an unsafe condition than that covered by the language of sec. 81.15. Of course, Holytz does not determine what constitutes negligence in this area; that is left to case law. While what affirmatively has been held to be a defect or an insufficiency or a want of repair under sec. 81.15 constitutes common-law negligence, the converse is not necessarily true."
We have no difficulty in agreeing with the plaintiff's contention that a municipality may be guilty of negligence in connection with highways where the procedure is governed by sec. 895.43, Stats., rather than sec. 81.15, and that actual notice will permit the plaintiff's bringing suit. It seems equally clear from the affidavits that the negligence complained about does not arise from an "insufficiency" or "want of repair" of the highway as contemplated by sec. 81.15.
The accident occurred, according to the undisputed facts, not because the highway was insufficient or because it was out of repair, but because the county failed to erect a sign warning not of a hazardous highway condition but of the likelihood of approaching traffic on the intersecting road.
In regard to the safety of the road, the undisputed facts, as revealed by the affidavits, indicate that the road itself is perfectly safe from a structural and construction point of view, and there is no allegation, such as we have had in some cases, that the roadbed was too soft, that it was constructed too close to a precipice, or that there were inadequate guardrails. Rather, whatever lack of safety exists comes from the municipality's failure to recognize the hazards of increased traffic and its failure to warn users of the intersecting highways of the hazards of that traffic.
It is thus apparent that the facts reveal evidence of negligence only in the failure to erect proper signs. It seems clear that this is a type of negligence not contemplated under sec. 81.15, Stats. In Firkus v. Rombalski (1964.), 25 Wis.2d 352, 130 N.W.2d 835, this court accepted the plaintiff's assertion that the duty to maintain signs already erected was not the allegation of a highway defect, but was rather actionable under other forms of negligence for which a municipality could be liable subsequent to Holytz.
We thus conclude that the plaintiff is not barred by failure to file a written notice under these circumstances. However, in the assessment of this case, even assuming arguendo that actual notice was sufficient, the dispositive issue: is whether the failure to erect signs constitutes negligence on the part of the county. In Holytz we pointed out that imposing the general rule of liability to negligence upon municipalities did not abrogate the rules of immunity for conduct that is within the realm of legislative or judicial discretion. Although in Firkus v. Rombalski, supra, we held that it was negligent for a municipality to fail to replace a warning sign that had been in existence, we found the negligence to be similar to the doctrine of equitable estoppel. We particularly stated, Firkus, supra, page 358:
"The town had no affirmative duty to erect the sign in the first instance, but having done so it was incumbent upon it to properly maintain the sign as a safety precaution to the traveling public which has the right to rely on its presence."
Prior to the Firkus Case, the case of Loehe v. Fox Point (1948), 253 Wis. 375, 34 N.W.2d 126, pointed out that a municipality had no duty to give warning of a sharp turn in the road. In the recent case of Raisanen v. Milwaukee (1967), 35 Wis.2d 504, 151 N.W.2d 129, we pointed out that the decision, right or wrong, of a city in programming its traffic-signal sequence was not actionable negligence because such programming was in the exercise of a legislative function.
It is apparent from a review of these cases that whether or not to place a stop sign, a warning sign, or a yield sign at the approach to a county trunk highway is a legislative decision that must be undertaken by the county board and not by the courts. At the most, what the plaintiff spells out herein is the county's failure to exercise the legislative function. Although there is a duty, as spelled out in Firkus, to maintain signs once they are placed, there is no duty upon the legislative body a government to place them at a highway intersection in the first place.
Accordingly, we conclude, under the facts, which insofar as they are material to this appeal are undisputed, that as a matter of law there is no duty imposed upon the county to erect signs warning of the approach of oncoming traffic.
By the Court. — Judgment affirmed.