*1 Burg legal guardian, Gladys Karl A. his M. Plaintiff-Appellant,

Weichert,

v. Casualty Insurance Co. and Robert W. Cincinnati † Defendants-Respondents. Zimmerman, Court of Appeals 6, July No. 00-3258. Submitted on 2001. Decided briefs September WI App (Also 622.) reported in 635 N.W.2d granted † Petition to review 11-27-01. *2 plaintiff-appellant, On behalf of the the cause was Harding submitted on the briefs of Victor C. of War- shafsky, Rotter, Tamoff, Bloch, Reinhardt & S.C., of Milwaukee. defendants-respondents,

On behalf of the the cause Gregory was submitted on the brief of J. Cook of Swietlik, Kasdorf, S.C., Lewis & of Milwaukee. Wedemeyer, Curley, Before PJ., Schudson and JJ. Burg, by legal 1. SCHUDSON, J. Karl A. his guardian, Gladys appeals judg- Weichert, M. from the following jury dismissing ment, trial, his action *3 against Robert W. Zimmerman and Zimmerman's in- Casualty Burg argues surer, Cincinnati Insurance Co.1 concluding that the trial court erred in that operation Zimmerman's conduct in the of a snowmobile negligent per jury's damages not se, and perverse. Burg verdict was and, therefore, is correct we reverse.

I. BACKGROUND ¶ 2. The facts relevant to resolution of the issues appeal dispute. According are to the trial testimony, approximately at EM. on 29, 5:30 November Burg sunset, about one hour after and friend snowmobiling gravel lanes, were on two snow-covered appeal brings also before this court the trial court motion for a new trial. See Wis. denying Burg's postverdict order 809.10(4) (1999-2000). All references to the Wiscon Stat. Rule sin are Statutes 1999-2000 version unless otherwise noted. Highway County.

parallel lanes, in Racine The two yet open to automobile under construction and not highway. traffic, to become additional lanes of the were Leighton, friend, Dean also Zimmerman and a were they snowmobiling stopped, on the same lanes when talking; motors, their and were their snow- turned off mobiles, suits, and helmets were black. The snowmobile lamps lamps and head and tail of Zimmerman's automatically Leighton's snowmobiles went out when Leighton Zimmerman and turned off their motors. Burg approaching friend, and the location 3. his Leighton stopped, Zimmerman and had did not where Burg apparently swerved, see them until it was too late. snowmobile, to avoid Zimmerman's and struck Leighton's Burg approxi- was thrown snowmobile.2 mately forty injury, resulting feet and sustained brain prolonged hospitalization in a coma and the need for permanent and rehabilitation. He has residual cognitive impairments. and Burg alleg- insurer, sued Zimmerman and his ing negligence. pretrial proceedings, In moved for declaring negligent per an order that Zimmerman was 350.09(1), part, which, se under Wis. in relevant provides: "Any operated during the hours lighted display lamp .. . darkness shall head lamp."3 Denying Burg's motion, tail the trial court ruled, law, as a matter of that Zimmerman had not been "operating" his snowmobile at the time of the accident.

2 however, appeal, None of the issues this turns on the Leighton's snowmobile, fact that struck not Zimmerman's. undisputed Leighton's It that Zimmerman's and lamps lamps snowmobiles had neither their head nor tail illuminated at time of accident. WISCONSIN 350.09(2) provides: During Burg's attorney trial, the course of the "maybe suggested the Court has made an incorrect ruling up point, maybe this Court can correct ruling." having court, its The trial concluded that on, because the motor was not Zimmerman was not "operating" accident, his snowmobile at the time of the responded pretty that "it's been a much consistent ruling parked, they're [snowmobiles are] when February 12,1970, may lamp After the head on a snowmobile single multiple type,

be of the beam or beam but in either case comply following requirements shall with the and limitations: (a) lamp lamp The head shall be an electric head and the by battery supplied generator, current shall be a wet and electric by current-generating incorporated magneto by coil into the generator directly by gears, driven the motor means of friction wheel, chain or belt. (b) lamp display light The head shall a white of sufficient illuminating power any person, to reveal vehicle or substantial object at a distance of 200 feet ahead. (c) equipped multiple If the snowmobile is with a beam head lamp, upper requirements meet the minimum beam shall set (b) par. forth in and the lower most beam shall be so aimed and of intensity persons sufficient to reveal and vehicles at a distance of at feet ahead. least 100 (d) equipped single lamp, If with a the snowmobile beam lamp such shall be so aimed that when the vehicle is loaded none high intensity portion light, of the at a distance of 25 feet ahead, projects higher lamp than the level of the center of the from it comes. which 350.09(3) February 12, 1970, provides, Section "After the tail lamp display light plainly on a snowmobile must a red visible during a distance of 500 feet the rear." darkness.from

being operated upon based the definition of the word 'operate' court, in The trial the statutes this state."4 however, commented: I'm stupid,

I think the law is but stuck with what the law is. know, people park

You I think two their when sitting talking snowmobile[s] out there and are around they're going take, about what route to it's hard for me comprehend say operat- can that's not to how law ing, but it does. Burg, jury deliberation, 6. After the retired for 350.09(1)-(3) §§

relying 346.51,5 and Wis. Stat. find renewed his motion court Zimmerman "4 'Operate' means the exercise of control over speed physical manipulation or direction of a snowmobile or the any necessary or activation of of the controls of a snowmobile to 350.01(9r). § put it in motion." Wis. Stat. WISCONSIN Stat. § 346.51, in relevant part, provides: (1) vehicle, person park, stop standing any No shall or leave unattended, roadway* upon whether attended or highway practical park, stop . . . when is or leave such vehicle standing roadway, parking, stopping off but even the standing roadway highway of a vehicle off the of such is unlawful followingrequirements unless the are met: (b) standing capable being Such vehicle must be seen operators of other vehicles from a distance of 500 feet each along highway. direction such added.) (Emphasis asterisk Under Wis. 346.02(10), § § applicable operators 346.51 is of snow- Stat. upon roadways. mobiles 340.01(54) states, part, relevant * Wisconsin " 'Roadway' portion highway means that of a between the negligent per replied: se. The trial court "I think the record's clear on that. The motion is denied."6 jury

¶ 7. The found neither Zimmerman nor *6 Leighton negligent respect "with to the use" of their again snowmobiles. moved a trial, for new con- tending negligent per that Zimmerman se, was and also arguing jury's damages that the determination of "perversely low." The trial court motion, denied his "[tjhere stating nothing [of that in this definition 350.01(9r)] 'operate' § supports under Wis. Stat. that [Burg's] claim." The court reasoned, "Here the facts merely sitting show. . . that the defendant was on a snowmobile that was not on, turned and that he was engaged any physical manipulation not or activation of the snowmobile's controls."

II. DISCUSSION Negligence A. Per Se agree if, 8. We concluded, as the trial court turning sitting off one's snowmobile motor and the on snowmobile on a snowmobile lane in the dark did not regularly portion established curb lines or that im- which is proved, designed ordinarily travel, or used for vehicular exclud- ing the berm shoulder." 6 trial, Earlier in the presence jury, outside the of the explained why court had believed that Wis. 346.51 did apply not to the case: designed protect driving This isn't to snowmobiles from 55 feet off highway. designed protect traveling It's vehicles that are roadway. requires stopped roadway It that. .. the vehicle when off the protection people using is visible 500 feet back for the who are

' roadway, protection people using for of the who are adjacent roadway roadway. land to the some 55 feet off the

151 "stupid." "operating," the be We law would constitute literally read and conclude, however, statutes, that the reasonably applied, conduct does establish that such "operating" a snowmobile. indeed constitute presents interpretation of a 9. The statute subject question to this court's de novo review. of law City 784, 2d Francis, St. Gloudeman v. 1988). (Ct. construing App. "In 422 864 N.W.2d language primary statute, source is the Proegler, County Milwaukee v. Wis. statute itself." 1980). Interpret 614, 625, 2d ing 291 N.W.2d608 language give statute, we endeavor to meanings their commonsense avoid words produce interpretation an result. See that would absurd Lyons, 397, 449, 2d Ford Motor Co. v. Wis. *7 1987). "operate," conclude that N.W.2d354 We 350.01(9r), unambigu § clear and under Wis. Stat. is (concluding Proegler, ous, 2d at 624-29 see 95 Wis. 346.63(3), § meaning "operate," the of under Wis. Stat. clear), encompass and that it does Zimmerman's is in conduct this case. 350.01(9r), § "Operate,"

¶ in- 10. under Wis. Stat. physical speed cludes "the exercise of control over the or "Operate," therefore, direction of a snowmobile." sarily encompasses neces- person's stopping in a actions turning literally, because, snowmobile and off its motor speed physical such actions do "exercise control over and direction" of the snowmobile. fact that such stop certainly actions renders those snowmobile controlling speed no of and direction than actions less change accelerate the or other actions that its course. turning statute, off Further, under 11. physi- literally, certainly, quite "the involves

motor manipulation of a snowmobile of the controls ... cal necessary put The fact that in motion." to manipulation stopped motion cer- the snowmobile's manipulation tainly of action no less a renders that necessary put in motion. the snowmobile controls determining Proegler, court, in this Indeed, meaning in 346.63(3)(b),7 "operate" under Wis. running "restraining aof the movement held that manipulation of a vehicle's vehicle constitutes scope our statute." falls within the controls which turning Obviously, Proegler, off a 2d at 627-28. manipulation" "physical motor is a snowmobile's [of] causing "restraining the movement" controls, the snowmobile. Proegler involved a drunk Moreover, while running, sleeping id. at the motor in his car with

driver significance gain special comments now 624, this court's instant case: in context of the merely physical control' while have 'actual "[0]ne could long keeping standing so one parking or still as regulate its move- position in car restraint moving as much Preventing a car from ments. actually putting the car and dominion as control any more exercise highway. Could one motion on bodily present, than thing, while regulation over a movement!?] As curbing movement or prevention of bodily able to assert physically or long as one were movement, [or she] he then dominion, in the sense *8 she] object [or as he would over an as much control has driving the vehicle." actually she] if were [or he " 346.63(3)(b) means 'Operate' provides, § Stat. Wisconsin the controls of or activation manipulation physical it in motion." necessary put vehicle a motor (quoting Id. at 628 Ruona, State v. 321 P.2d 615, 618 (Mont. 1958)). sleeping Indeed, a drunk driver, in a parked running, car with the motor has less operator, control over that vehicle than a snowmobile sitting parked awake at the controls of a Modory, with motor off.8See also State v. 204 Wis. 1996) C'Proegler 2d 538, 544, 555 N.W.2d399 say necessary; does not that movement rather, is merely says that if the defendant exercises dominion in operation movement, the sense then the fact of has established."). been Burg correctly argues, legislature, 13. As quite obviously, requirements enacted the detailed § part Wis. 350.09 in because it "wants snowmo- night lamps bilers at to illuminate their head and tail so people vicinity other can see them." See Parr v. (1948) Douglas, 318-19, 34 N.W.2d 229 (explaining governing lights that statutes trailer estab- safety standards, lish the violation of which "shall be prima practices evidence of unsafe in the use of facie vehicles"). public highway by such conclude, To 350.09(1) the, nevertheless, that mandate of does not apply to the circumstances of this case would indeed be

8And, indeed, affirming the trial interpretation court's truly would render a ironic result: the operator of a snowmobile stopped with its negligent se, motor off would not be per operator while the of a stopped snowmobile that is with its negligent se, motor on would be per although he or she would be quickly better able respond dangerous to a situation. As fairly argues: [E]veryoneagrees negligent per that Zimmerman would have been sitting engine running lights se for in the dark with his and his off. argue negligent per by turning To then that he is not se both his engine lights only off rewards Zimmerman for his unreason-

able action. This is nonsense. *9 require "stupid." an absurd a conclusion would Such reading precluding statutory interpretation the literal application to one of of the statute and commonsense safety dangers are standards these serious the most Lyons, prevent.9 2d at 449 137 Wis. See intended to (explaining 'to avoid are to be construed that statutes results). absurd Damages

B. jury's argues "[t]he that award 14. also damages perverse in a new trial that it warrants was so "[his] justice." explains medical He that the interests defense issue," in and that never condition was undisputed to counter "called no medical witnesses" points injuries. permanent Further, he of his evidence damages jury that were consider- awarded out that the suggested. ably less than what even defense Burg's dispute factual Zimmerman does Breeding Ranches, Ltd. v. See Charolais assertions. Corp., 109, 279 N.W.2d 2d FPC Sec. admitted). 1979) (unrefuted arguments deemed He, "[e]ven argues to find simply if court were that this jury damages in inad- this case awarded extremely Ac serious. snowmobiling are dangers Resources, of Natural Department cording to the Wisconsin reported Wis accidents were fatal snowmobile thirty-eight 1999-2000, with an and collision year for fiscal consin Natural Dep't of leading cause of death. Wis. object Summary, Report Program Res., Snowmobile 1999-2000 http://www.dnr.state.wi.us/org/es/enforcement/safety/snow- at therefore, legislature surprisingly, Not mobile_report.html. roadway" upon a "operator of a snowmobile made has operators of governing road rules of the subject to numerous 346.02(10). Wis. motor vehicles. See other equate, justice a new trial interests is not premises argu Zimmerman, however, warranted." his principle jury ment on the finding "where verdict solely plaintiff negligent causing his own *10 injuries by supported upon is credible evidence the damages ground inadequate record, a is not for a new enough; jury's where, here, trial." True but as plaintiff verdict cannot stand because was denied ruling negligence per the correct ase, Zimmerman's required liability damages. new trial is on both and See Co., 657, Martin v. Ins. 2d 663, Allstate 45 173 Wis. (when (1970) damages N.W.2d 646 challenged award has been excessive, in as and error law necessitates justice, damages new trial in interests "the issue of liability"); should be retried with the v. issue of Mainz (1963) Lund, 633, Wis. 2d 119 N.W.2d 334 (although damages inadequate award "is not in itself ordering grounds jury for a where new trial a has questions answered other in the verdict so no as to find liability part party charged negli on the of the with gence," inadequate damages may signifi be award determining justice require in cant whether interests finding liability against new trial where "the of no evidence"). weight great of the By Judgment reversed. Court.— {dissenting). controversy CURLEY, J. The interpretation this case surrounds of Wis. 350.09(1) requires, part, "Any which snowmo- operated during bile the hours of . darkness lamp." Burg urged . . shall display lighted lamp head and tail the trial court find that Zimmerman had violated this safety consequently, negligent per and, statute se. disagreed, finding The trial court definition "operate" the verb found in the did statutes not encom- presented pass are that here. Those facts the facts keys ignition, keeping in the Zimmerman, while turning stop off his snowmobile decided to extinguishment ignition, of the which resulted lamp, chat his fellow in order to with head and tail borrowing contorting By the statute and snowmobiler. majority opinion phrases has cases, the from other place "operate" to Zimmerman's the word redefined respectfully disagree I conduct within statute. dissent. question interpretation of a statute is 17. The de novo. State v. court reviews

of*law which this (Ct. 768, 776, 2d 540 N.W.2d Ambrose, 196 Wis. 1995). statutory interpretation goal App. tois legislature. give effect to the intent discern and to 43, 47, 2d 604 N.W.2d579 Hackl, Hackl v. 1999); Cardenas-Hernandez, 219 Wis. 2d v. State *11 (1998). primary The source 516, 538, N.W.2d 678 579 language statutory of the statute construction is the for Comm'n, Serv. Envtl. Decade v. Public itself. Wisconsin (1978). In deter 344, 350, 260 N.W.2d 712 81 Wis. 2d single meaning any phrase mining in or word of the light necessary it in to examine statute, it is 371, 373, of Trs., State v. Board entire statute. (1948). ambiguous, is the statute 248 Where 34 N.W.2d legislative may intent found the look to we history, scope, language in relation to its the statute of objective subject intended to be matter, and context, accomplished. Decade, 81 2d at Envtl. Wis. Wisconsin 318, 324-25, 243 Wachsmuth, 73 Wis. 2d 350; v. State (1976); Johnson, Inc., v. Jensen & 410 Ortman N.W.2d (1975); v. 635 State 508, 520, 225 N.W.2d 66 Wis. 2d 663, 221 659, 2d Merchandisers, 64 Wis. Automatic (1974); v. Gas Co. Southern 683 Wisconsin N.W.2d 643, 648, 2d 205 N.W.2d Comm'n, 57 Wis. Public Serv. 157 (1973). objective accomplished to be must be given great weight determining legislative in intent. Town v. Skubitz, 430, 437, Menomonee 53 Wis. 2d (1972). language clear, 192 N.W.2d887 If the statute's is we simply apply look no further and the the statute to facts Jungbluth v. circumstances before us. See Home (1996). town, Inc., 320, 2d Wis. 548 N.W.2d519 interpretation An aof statute is if unreasonable directly language the statute, contravenes plainly contrary legislative underlying to the intent or statute, lacks a rational DHFS, basis. Trott v. 2001). 397, 409, Wis. 2d Here, 626 N.W.2d48 majority's interpretation contravenes the clear statutory language and lacks a rational basis. legislature's "operate," ¶ 18. The definition of " § 350.01(9r), 'Operate' in found Wis. reads: physical speed means the exercise of control over the or manipulation of a direction snowmobile or the or activation of of the controls of a snowmobile necessary put 'Operate' init motion. includes the operation ambigu- nothing of a snowmobile." There is language ous about found the statute which requires interpreting us to resort other aids Clearly, operates statute. one a snowmobile one when speed either controls or direction the snowmobile physically manipulates or when one or activates stopped engine A controls. snowmobile any without running by activated, controls virtue being "operated" person sitting definition, is not on it. *12 running

¶ Here, Zimmerman was neither nor moving injured. his snowmobile when was While sitting stopped snowmobile, aon and turned off the path night of a middle well-used snowmobile on a dark wearing surely negligent while dark clothes must be "operating" the snowmo- it does not constitute conduct, presented the that in order start Evidence was bile. required to both turn the snowmobile, Zimmerman rope. person key pull a sits on a snowmobile a When and keys ignition in the off in the on, the not has that is position, pull rope to start further, needs to and, exercising physical engine, over the control not one is speed There was neither snowmobile. or direction of the speed Zimmerman was addition, In a direction. nor activating manipulating physically the controls necessary put in motion. it appear majority make it would 20. While slowing process down Zimmerman was that engine turning occurred, accident when the off the and supports The record states this conclusion. no evidence engine off for had been turned Zimmerman's five interpreta- Therefore, the the accident. minutes before majority opinion, given by Zim- that because tion speed over the control once exercised merman turning by stopping it off and some snowmobile remained seated occurred, but the accident time before "operating" the vehicle snowmobile, he was still on the distorts the occurred, twists and accident when interpretation "operate." adopted, majority's to be definition 21. Were the point. logical stopping much How be no

there would expire the snowmo- for someone seated need time keys leaving ignition turning off the bile, after "operating" longer ignition, no be in order to in the operating if person he a snowmobile a Is snowmobile? keys, but and removes turns off the if someone What on the snowmobile? remains seated ignition, keys stops snowmobile, leaves away returns and sits but the snowmobile from walks — "operating" Consider the snowmobile? he still on it *13 underage person, whether an who sits on a snowmobile garage keys ignition, guilty in a stored with the is operating contrary to Wis. Clearly, majority's attempt 350.02. to re- shape Zimmerman's conduct so as to fit within the "operate" definition of in order to find Zimmerman negligent misguided fraught problems. and with contrary majority's Moreover, 22. to the conten County Proegler, tion, both the Milwaukee v. 95 Wis. 2d (Ct. 1980), App. 614, 291 N.W.2d 608 and State v. Modory, 2d 538, Wis. 555 N.W.2d 399 1996), support legal cases conclusion that Zimmer operating man was not the snowmobile when the acci majority opinion, dent occurred. As noted Proe- gler guilty operating was found his vehicle while under the influence of an intoxicant when he was found sleeping running. holding in a car with the motor The operating the case states that one is a vehicle when "a running." defendant starts the motor leaves it and/or Proegler, doing 95 Wis. 2d at 614. Zimmerman was neither when the accident occurred. Modory operating was convicted of while pickup

intoxicated when he was discovered in his truck, engine seated the driver's side of the car with the running spinning. truck, the wheels was not moving, resting however, because it was on a mound prevented making dirt which the tires from contact ground. affirming with the In his conviction, this court said: agree

We argument. with the State's Section 346.63(3)(b), Stats., does require movement. The only statute requires that physically defendant manipulate or activate "necessary controls put [the motor vehicle] in motion." There is little doubt from the evidence in Modory this case that performed this statute. He was behind requisite acts under engine running and was with the wheel of a vehicle position. from its stuck attempting to free the vehicle Again, undisputed Modory, facts 2d at 544. Wis. *14 engine off, had was that Zimmerman's are attempting he not time, and was off for some been Under both accident occurred. when the movement holdings, clearly operating not Zimmerman snowmobile. major suspect the real concern behind 24. I "operate"

ity opinion's is its ill-conceived definition jury's finding objection Zimmerman's acts to the jury's negligent all and to the award at were inadequate majority Burg. damages true, If then the they questioned "satisfied whether were should have considering and reasonable credible evidence that, all light to the most favorable therefrom the inferences party against made, there is no the motion is whom jury's [the verdict]," Kuk to sustain credible evidence Rodriguez, 324, 331, 552 N.W.2d 203 Wis. 2d linski v. 1996), depending answer, and, Attempting squeeze this remand for a new trial. "operate" definition of will into the factual situation only in additional the law and result serve to obfuscate litigation. respectfully Accordingly, I dissent.