*1 litem, Respondent, ad Dvorak Chart, Guardian Appellants.* another, January 30, January 3, 1973. Argued 1973. Decided No. 308. 673.) (Also reported in 203 N. W. 2d * rehearing denied, costs, without on March Motion *4 Benjamin argued by appellants For the the cause was general, on Southwick, attorney with whom assistant attorney general. Warren, Robert brief was W. by Curtis M. respondent there a brief For the Sommer, attorney, Madison, E. Kirkhuff, and Richard by argument guardian litem, Rhinelander, oral ad Mr. Kirkhuff. appeal: presented
Wilkie, Three are this J. issues proper parties 1. Are Dvorak Yarekois defendant? sign If, warning law,
2. as a matter a located in conformance com- state reasonable, there mission’s directives is nevertheless sign concerning placement of fact of that appellants’ properly so that trial court motion denied summary judgment for ? May appellants proceeded against properly
3. highway warning sign improperly placed which was by their staff?
Proper parties defendant. argue they wrong Appellants parties, first they placement had no role in actual because warning signs they supervise did such placement. proper parties, The assert, are those actually employees, crew, members of the who dug implanted sign pole. the hole and citing argues v. Roach,3 Truesdill
Respondent, objection demurring this appellants waived to the 2d 2d N. 11 Wis. W. *5 objec- permits complaint. However, 263.11, Stats., sec. 263.06 to those demurrable defects tion outlined sec. accordingly they did and to made in an answer. This objection was not waived. their appel- However, merit the contention of we find no proper parties defendant. lants that According description to the state commission job, of entitled for District Chief Dvorak’s “Guide designated Engineer,” Maintenance function was: his advising assisting engineer; . with “. . district and supervision waysides maintenance, traffic, of and including bringing landscaping work, and stan- about practices, performance, and maintenance dard operations, sides district.” results in signing marking way- highways, and and landscaping; related in the and and with services added.) (Emphasis “operations specifically, More activities” Dvorak’s and designated to were be: supervise He will and “6. direct the execution all waysides landscaping
maintenance, traffic, provement and and im- ensuring agreements, work, that all contracts, special provisions and are carried out in accordance with approved policies procedures. U responsibility He will overall “8. maintain the dis- for shop, marking signing, trict re- (Emphasis added.) activities.” lated traffic engineer, As district chief maintenance Dvorak’s authority responsibility and stated be: responsible .“. . is for and has commensurate au- thority accomplish the fulfillment of the set duties may delegate He forth below. members staff his appropriate portions responsibilities, together of his proportionate authority may fulfillment, for their but he relinquish delegate responsibility his overall portion any accountability.” (Em- results, nor his phasis added.) *6 employ- traffic supervisor, As district Varekois’ responsibilities desig- ment and similarly were functions highway nated the state commission. His function supervision “the immediate was and activities of traffic added.) (Emphasis related services in the district.” specific operations His and included: activities provide “1. supervision will He immediate and direc- engineering tion of traffic in accordance activities approved policies procedures. and sign He supervise signing “2. will shop and the marking programs. and supervise He “4. will the installation and maintenance signs added.) and control (Emphasis devices.” traffic Dvorak, As with superior, his immediate Varekois’ au- thority accountability and delegable for were results to his subordinates. proper
We conclude parties that the must be defendant determined operative nature of the constitut- facts ing the complained alleged wrongful invasion of.4 The act here warning an insufficient highway is of a known hazard. As both Dvorak and official, had non- Varekois delegable authority responsibility and placement for the highway warning of such signs, they are proper parties defendant.
Factual negligence. on argue Appellants they, that as state employees, cannot any in be liable tort for resulting accident from the highway location of warning sign which placed in legislative conformance with a directive of the state commission., highway They contend, first, placement compliance with the 750-foot adopted by directive 4 Cay generally, gill Ipsen See 27 Wis. 2d N. W. 2d 284. Traffic Manual on Uniform commission’s pursuant Highways, Control Streets Devices statutory authority 1961,5 a mat- reasonable its is ter of law. argument untenable because assumes
This warning signs placed in conformance were strict with the 750-foot directive of commis- the state Although appellants’ sion. affidavit asserts highway warning signs placed 794.5 from feet (4) (c) (d), Sec. 84.02 Stats. 1959: “(c) The commission shall erect and maintain such standard guide warning signs necessary along as it deems the state system, any display trunk and it shall be to erect or unlawful oth- *7 guide warning signs upon system, except er or the state trunk in emergency by approved cases of Any or when the commission. may by erection in violation hereof be removed the commission. “(d) may co-operate The commission with the Public Roads designated agency govern- Administration or other of the federal formulating adopting changing system ment in and or a uniform numbering, designating highways of or of interstate character state, within this and in the selection and erection of uniform danger signals safety protection and devices for the and direction of traffic.” (1) Sec. 349.08 and Stats. 1959: “(1) highway The adopt state commission shall rules for the design stop signs yield right way signs installation of of design, operation and for the installation and of traffic control signals signs permitted by where these and devices are statutes. amending rules, highway In such the state commission shall take into account the needs and of local conveniences as authorities well policy the require as the stop signs of state to uniform and traffic signals. control “(2) stop yield sign, sign No signal or traffic control shall be installed design, unless the operation installation and use or sign signal such or conforms to the rules of the state commission.” statutory authority Pursuant to this the state commis- adopted use, accident, sion for its effective on the date of the the Manual on Uniform Traffic Control Devices for Streets and Highways prepared by the Joint National Committee on Uniform by Depart- Traffic Control Devices and issued the United States Commerce, ment of Bureau Public Roads. occurred, the where the accident middle of intersection respondent, answering affidavit, that the warn- avers ing signs placed only 708.4 from the commence- feet right-angle manual, ment of the curve. The effective accident, pertinent part: the at time the states warning signs primarily protection “Since unacquainted of very rural about 750 feet road, the driver who it is given important that care locations. In be to their warning signs normally placed areas should advance of the or condition hazard warned of. . . . warning “The actual advance be deter- distance will factors, speed mined two prevailing condi- against. tion warned ...” upon Depending what is considered to be “hazard or of,” beginning right- condition warned or end of the angle turn, question a substantial of fact exists as to complied whether 750-foot directive Manual’s if, with. Even insist, compliance with a legislative directive commission placement highway warning sign renders the per of a se here, reasonable,7 however, of fact remains as to was, whether complied directive in fact, with.
Appellants’
argument
second
placement
is that
highway warning
legislative
quasi-legis-
ais
lative
and,
decision
similar
Milwaukee,8
Raisanen v.
*8
predicate liability
cannot
resulting
for an accident
from
its
In
respect
location.
we
this
think the trial court
correctly
upon
relied
this court’s decision in Firkus v.
9
Rombalski
in its
conclusion that once
made
legislative
quasi-legislative
or
place
to
decision
6
supra,
5,
Manual,
footnote
at sec. IC-3.
7 See, e.g.,
(1967),
504,
Raisanen v. Milwaukee
35
2d Wis.
161
2d
N. W.
129.
8 Id.
9
352,
(1964),
also:
2d
101 warning place it and highway duty a to sign, had negligence. maintain without finding affirmed a trial court’s
In court Firlcus this negligent Portage county, Hull, in that the town of was failing replace a maintain a matter of law in to knowledge stop sign, of dis- arterial its Acknowledging days. appearance, nineteen for over sign initially, duty put up stop to town had no properly court held failure maintain this its thereby causing accident, an erected, once it was was negligence. however, held, In Raisanen it actionable was signals functioning traffic which were in accord- predetermined any plan with a not in violation of rules, give commission did not rise ato cause of action: appeal city’s primarily “This concerns decision in
programming signals its traffic control which decision respects conformed in all to the and the statutes rules highway commission, of the and which decision involved lawfully fully the choice of authorized alternatives. We expressed by concur with the rationale the New York appeals [(1960), court of in Weiss Fote 2d 7 N. Y. 579, Supp. 63], 200 409, N. Y. 2d E.N. 2d law fully signal lights city programming authorized a give liability by jury should not guessing a rise tort second- safety plan. reasonableness Therefore, complaint we hold the fails to a cause negligence.” action holding recently The Raisanen by this reaffirmed County,11 against court in Dusek v. Pierce a suit warning municipality failure to erect its a sign alerting drivers a intersection. Af hazardous firming granting summary the trial judgment court’s against plaintiff, this court held: apparent from a review of these cases that “It warning sign, place stop sign, a or not whether 01 Milwaukee, supra, page footnote at Raisanen v. 498, 167 2d 246. (1969), 42 2d N. W. Wis. *9 102 yield sign approach county highway at the to a trunk is legislative a decision that must be undertaken the county board and not most, the courts. At the what plaintiff the exercise spells county’s out to herein the failure is legislative Although the function. there is a spelled duty, Firkus, signs as out in to maintain once
they placed, are of a upon legislative duty there no is the body government place highway to them at a inter- 12 place.” in the first section
Although the locate decision as to whether or question traffic exists actionable, is a fact highway warning signs were, to whether the instant fact, pursuant highway located commission’s the they were, If con- is clear that Raisanen directives. plaintiff permitted the not be trols and to second should guess plan’s safety. out, however, the If it turns the sign placement specifica- actual did not conform with manual, appel- outlined in tions Raisanen offers protection. signs no or not lants Whether were placed in conformance commission’s specifications Accordingly, of fact. is denying appellants’ trial court correct in motion for judgment. summary liability
Individual of defendants. Appellants’ contention trial court final is ought granted judg summary have their motion for they individually tort ment because cannot liable in signs place highway warning even if did not conformity legis with the state commission’s again argu appellants Here directive. advance lative two supportive position. of their The first ments since agents of the were commis (sec. (3) 1965), under 84.01 84.01 sion sec. Stats. their acts of and, acts such commission there fore, they partake governmental are entitled to page Id. at *10 Appellants cite immunity enjoyed by the commission. authority It is proposition. There none. no for this is employees the or that is immobile absent obvious state agents carry employees are, to on functions. All state its agents performing therefore, of the state when those agree appellants’ po entrusted to them. tasks [To they, agents highway commission, of sition that as the ought governmental partake the to be allowed to of im munity enjoyed by commission, that court would this long have to overlook the of state, law em settled this 270.58,13 public employees in sec. bodied that or officers * may against proceeded capacities.] be in their official therefore, conclude, public We appellants, that of- political 270.58, See. Stats. and “State thereof subdivisions pay judgments against (1) taken officers. Where defend the any special proceeding public ant in action or or em is officer ploye against proceeded capacity and is in official his or is proceeded against anas because of acts committed individual while carrying employe jury out his an duties as officer or and or good judgment damages court finds that he acted in faith the toas against employe by paid and costs entered the officer shall or be political or subdivision of which he an or officer employe. Regardless litigation govern of the results of pay attorney’s mental unit shall reasonable costs fees defending by action, jury unless it is found the court or employe good faith, the defendant officer or not act in did when provide legal does counsel to em the defendant officer or ploye. Deputy they sheriffs in those counties where serve at will of the by the sheriff but on civil service basis shall be covered except subsection, provision relating this payment judgment discretionary mandatory. of the shall be and not In judgment damages may such counties the paid as to be costs county approved by county if board. Any personally “(2) liable town officer held for reimbursement any good paid pursuant public out in faith funds to the direc- any special meeting at tions electors annual town be shall judgment for the amount the town of the reimbursed ages dam- against him.” and costs entered 38 Wis. 2d v. Sweet N. Forseth W. also: See 2d 370. * rehearing. p. post, See: on clarified Sentence against may their proceeded for dereliction of
ficials, resulting injury to another. duties argument Appellants’ they cannot be second is that respondeat superior in tort the doctrine of liable because only actually applies parties performing as between those complained superiors. Bypassed, the acts their according employees appellants, are those the middle supervisory Here, appellants chain of command. essentially reasserting argument their earlier parties proper are not the action. defendant to this *11 14 urge Appellants that supports Clamen Eckstein argument. proposition their Clausen stand for does the respondeat superior that the doctrine of from the runs agent actually responsible the superiors. for act and his case, injured plaintiff In attempted that an city to sue engineer alleged and a sewer contractor for an failure properly to warn piles. motorists excavations and dirt We held that the trial properly court dismissed the suit against engineer city the duty because not did include his placing warning signs: the representative gen “. city, . . As of the performance Carter had supervision job eral over the of the but engaged laying doing he was not the sewer it nor respondeat superior for his own benefit. The doctrine of apply not Potter, Carter, does to Carter because agent city. was the ministerial to superior of the If Potter failed light place necessary liability attaching the to a proceed city would from him to the and not 15 agent Carter. Potter was Carter’s or servant.” appellants’ misplaced upon reliance Clausen is be- But again proper cause it the are assumes defendants sign dug actually those members crew who signs. implanted appellants here hole and But both nondelegable personal authority responsibility had 409, (1959), 7 Wis. 2d 2d 97 N. W. 201. page Id. at 414. placement warning signs. for The thrust respondeat superior of Clausen that the extends chain responsible from those who are an su- for act their periors. responsible Here, for the proper placement therefore, and, proper parties defendant. effectively
Appellants argue that also trial court granted summary judgment by their motion for find- ing visible, highway warning sign “clearly was night time, oncoming in the to an motorist.” The correctly noted, however, further court this germane determination was not to the of the placement highway warning. safe By the Court. —Order affirmed. following
The memorandum filed on March (on rehearing). opinion motion The Per Curiam 270.58, Stats., embodying long refers sec. “the set- public tled law employees may . . . that officers proceeded against capacities.” in their re- official On hearing, quot- has been called to our attention that portion ed of the statement could be construed as a rule *12 liability. intended; given It so interpretation, blanket it would incorrect. Sec. imposes obligation 270.58 an municipality on the state or only judgment against if a has been secured the officer employee. opinion, duty As stated in nondelegable, herein was of a ministerial defendants na- facts, proved trial, ture. These if impose on would li- ability 270.58, not on the basis of sec. but rather on the Meyer rationale of Carman Wis. 2d
N. W. rehearing
Motion denied without costs.