Williаm HARMANN, Jr., William Harmann, Sr., Linda C. Harmann, Plaintiffs-Appellants, v. Neil SCHULKE, Bernard H. Schulke, Milwaukee Mutual Insurance Company, Cherie Hadley, The Continental Insurance Company, John Hildebrandt, Home Mutual Insurance Company, Town of Farmington, Kim Grant, James and Mary Grant, David Grant, American Family Mutual Insurance Company, Maureen Schulke and Milwaukee Mutual Insurance Company, Defendants, COUNTY OF WAUPACA, Town of Dayton, General Casualty Insurance Company, Defendants-Respondents.
No. 87-1289
Court of Appeals
Argued July 21, 1988.--Decided October 26, 1988.
432 N.W.2d 671
† Petition to review pending. This petition was not disposed of at the time the volume went to press. Its disposition will be reported in a later volume.
For the defendants-respondents Town of Dayton and General Casualty Insurance Company, there was a brief by Peter M. Farb and Gabert & Williams of Appleton, and oral argument by Peter M. Farb.
For the defendants-respondents County of Waupaca and General Casualty Insurance Company, there was a brief by Thomas N. Harrington and Rodney D. DeKruif and Cook & Franke, S.C., of Milwaukee, and oral argument by Thomas N. Harrington.
Before Dykman, Eich and Sundby, JJ.
The issues are: (1) whether Dayton and Waupaca are immune from suit pursuant to
Summary judgment is governed by
Harmann‘s complaint states a cause of action grounded on negligence. Dayton and Waupaca deny any negligence or that they had caused any injury to Harmann. Dayton and Waupaca also assert the affirmative defense of governmental immunity under
Because Dayton‘s and Waupaca‘s answer raises factual issues regarding negligence, causation and immunity, we turn to the affidavits supporting Dayton‘s and Waupaca‘s motions to determine whether they make prima facie cases for summary judgment. In other words, they must show dеfenses which would defeat Harmann‘s claims. In re Cherokee Park Plat, 113 Wis. 2d at 116, 334 N.W.2d at 583. If Dayton and Waupaca show prima facie cases for immunity, and
DAYTON‘S SUMMARY JUDGMENT MOTION
According to an affidavit submitted by the Dayton town chairman in support of Dayton‘s motion for summary judgment, Dayton participated in a 1974 state signing survey. As a result of that survey, several changes were suggested relating to signs on Rural Road. However, no sign was recommended for the curve where the accident occurred. In addition, the Dayton town board members, having driven on the curve from time to time, did not think the curve needed a sign. Based on the survey and personal experience, Dayton exercised its discretion in not placing the curve sign.
The question of whether
a. Immunity Under
Harmann argues as follows: Sections
The department shall adopt a manual establishing a uniform system of traffic control devices
for use upon the highways of this state. The system shall bе consistent with and, so far as practicable, conform to current nationally recognized standards for traffic control devices.
Local authorities shall place and maintain traffic control devices upon highways under their jurisdiction to regulate, warn, guide or inform traffic. The design, installation and operation or use of new traffic control devices placed and maintained by local authorities after the adoption of the uniform traffic control devices manual under s. 84.02(4)(e) shall conform to the manual.
The Department of Transportation adopted the Manual on September 19, 1974. Foss v. Town of Kronenwetter, 87 Wis. 2d 91, 103 n. 26, 273 N.W.2d 801, 808 (Ct. App. 1978). However, the Manual must be read in light of Dusek v. Pierce County, 42 Wis. 2d 498, 167 N.W.2d 246 (1969). In Dusek, the supreme court stated:
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.... Although thеre is a duty, as spelled out in Firkus, to maintain signs once they are placed, there is no duty upon the legislative body of a government to place them at a highway intersection in the first place.
Id. at 506, 167 N.W.2d at 250. In Firkus v. Rombalski, 25 Wis. 2d 352, 358, 130 N.W.2d 835, 838 (1964), relied on in Dusek, the court said:
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.
The question thereforе is whether the department‘s adoption of the Manual gave Dayton an “affirmative duty to erect the [warning] sign in the first instance.” We think not. The Manual, adopted by statute in its entirety, provides in its introduction: “It is the intent that the provisions of this Manual be standards for traffic control devices installation, but not a legal requirement for installation.” Sec. 1A-4, MUTCD. The Manual does not mandate the erection of any sign.4
b. No Valid Claim Under
The Wisconsin Supreme Court has described the scope of negligence actionable under
Foss, 87 Wis. 2d at 100, 273 N.W.2d at 806 (footnotes omitted). In Loehe v. Fox Point, 253 Wis. 375, 379, 34 N.W.2d 126, 128 (1948), the court noted that the defendant had no duty to warn of a right angle turn in the roadway. The curve in Rural Road was not an insufficiency within the meaning of
With regard to the tall grass issue, Harmann did not allege this defect in his complaint or amended complaints. Under summary judgment methodology, we must construe a complaint liberally, and accept factual allegations, or the reasonable inferences from them, as true. C.L., 143 Wis. 2d at 721, 422 N.W.2d at 622. Harmann raised the tall grass issue in his affidavit submitted in opposition to summary judgment, and requests that we construe the complaint to include this theory of negligence. However, “[e]ven liberally construed, the complaint does not support such a distinct theory of negligence.” Id. at 721 n. 13, 422 N.W.2d at 621. The complaint and amended complaints allege that Dayton and Waupaca “were negligent in failing to mark the said curve with an appropriate curve sign and, further, were negligent in failing to post Rural Road with the required 45 m. p. h. speed sign.” Summary judgment methodology precludes us from considering the tall grass claim. Id.5
c. No Liability For Failure to Post Rustic Road
The question of whether Dayton can be liable to Harmann for failing to post forty-five mile per hour signs on a designated rustic road requires statutory interpretatiоn. We review such questions de novo. E.S., 141 Wis. 2d at 184, 413 N.W.2d at 672.
Harmann points out that the portion of Rural Road involved in this case was designated a rustic road in February 1982.
We reject Harmann‘s argument. The purpose of a rustic road designation is to alert motorists to areas of singular beauty and to allow them to slow down and “smell the roses.” It has nothing whatsoever to do with safety or with rectifying a dangerous situation. Wisconsin Adm. Code, sec. Trans-RR 1.04(1) sеts out some of the qualifications a road must have before being designated “rustic“:
A rustic road has outstanding natural features along its borders such as rugged natural terrain, native wildlife and native vegetation, or includes open areas with rustic or agricultural vistas which, singly or in combination, set this road apart from other roads as being something unique and distinct.
Since safety factors have nothing to do with designating roads as “rustic,” Dayton‘s failure to sign the road cannot be negligence per se, and cannot be a cause of Harmann‘s injury.
WAUPACA‘S SUMMARY JUDGMENT MOTION
We now turn to Waupaca‘s affidavits submitted in support of its summary judgment motion. According to Waupaca‘s highway commissioner‘s affidavit, the state of Wisconsin contracted with Waupaca to pro-
In affidavits submitted in opposition to Waupaca‘s motion, a traffic engineer claimed that the curve in question was not signed in accordance with the Manual. Harmann‘s attorney also filed an affidavit in which he claimed that Walter Ciura, Dayton town chairman, deposed that Waupaca had contracted with the state on May 8, 1975 to furnish and place signs on county trunk highways, town roads, and village streets. The contract provided in part:
6. Signing, Item 90001. The work under this item consists of furnishing and installing posts, regulatory and warning signs in conformity with the plans, standard specifications, special provisions, and the Wisconsin Manual of Traffic Control Devices. The signs to be installed are those identified in the County‘s inventory of regulatory and warning signs, which is оn file in the office of the Governor‘s Highway Safety Coordinator.
Harmann‘s attorney also claims that Ciura deposed that Dayton had hired Waupaca to do the survey and the placement of the signs. Harmann asserts that Waupaca‘s highway department engineers negligently performed the task they undertook, which was to survey Dayton‘s roads and recommend the placement of signs in order to bring the signing of Rural Road into conformanсe with the Manual.
We have looked at the page of Ciura‘s deposition transcript relied upon as support for Harmann‘s attorney‘s assertion that Ciura claimed that Dayton
Harmann appears to argue that Waupaca operated as Dayton‘s agent in surveying the road and recommending signs. If that is so, Waupaca shares in Dayton‘s
Harmann claims that if we conclude that government-employed engineers are not liable for their negligence while privately-employed еngineers are so liable, we violate his constitutional right to equal protection. Harmann cites no legal authority for his argument, so we need not address it. State v. Shaffer, 96 Wis. 2d 531, 545-46, 292 N.W.2d 370, 378 (Ct. App. 1980). Were we to address this argument, Harmann would not prevail. Harmann‘s theory is that: (1) Waupaca contracted to recommend signs according to the Manual; (2) the Manual required the curve warning sign to be placed in the first instance; (3) therefore Waupaca‘s failure to recommend the curve warning
By the Court. -Orders affirmed.
SUNDBY, J. (dissenting). For the reasons stated in my dissent in C.L. v. Olson, 140 Wis. 2d 224, 241-47, 409 N.W.2d 156, 163-165 (Ct. App. 1987) aff‘d, 143 Wis. 2d 701, 422 N.W.2d 614 (1988), I dissent from that part of the majority opinion which holds that we may not consider Harmann‘s affidavits in determining whether the defendants are entitled to judgment as a matter of law. Our summary judgment methodology is contrary to
Notes
No suit may be brought against any volunteer fire company organized under ch. 213, political corporation, governmental subdivision or any agency thereof for the intentional torts of its officers, officials, agents or employes nor may any suit be brought against such corporation, subdivision or agency or volunteer fire company or against its officers, officials, agents or employes for acts done in the exercise оf legislative, quasi-legislative, judicial or quasi-judicial functions.
If damages happen to any person or his or her property by reason of the insufficiency or want of repairs of any highway which any town ... is bound to keep in repair, the person sustaining the damages has a right to recover the damages from the town ....
Harmann claims Foss v. Town of Kronenwetter, 87 Wis. 2d 91, 273 N.W.2d 801 (Ct. App. 1978), also supports his position, but Foss is distinguishable. There the plaintiff claimed the town was negligent because it had bolted a “dead-end” sign to the back of a stop sign located on the left shoulder. Id. at 95, 273 N.W.2d at 803-04. This contravened the Manual, which required all warning signs to be on separate posts on the right shoulder. Id. at 103-04, 273 N.W.2d at 807-08. Because the Manual was not then in effect, the Foss court concluded that the placement of the sign on the left side of the road, instead of the right side, was within the town‘s discretion. Id. Foss implied that if the Manual were in effect, sign placement must then conform to the Manuаl‘s specifications. Foss does not support Harmann‘s theory that the Manual mandates not
only where and how the sign will be placed, but also the original decision as to whether the sign should be placed at all. “In the absence of a statute or regulation that mandates a sign placement, whether or not to post a ... warning ... sign at a given location is a matter that requires the exercise of judgment.” Hjerstedt v. Schultz, 114 Wis. 2d 281, 285, 338 N.W.2d 317, 319 (Ct. App. 1983). Such a decision is protected byThe dissent‘s position as to summary judgment methodology was considered and rejected in C.L. v. Olson, 143 Wis. 2d 701, 721, 422 N.W.2d 614, 621 (1988).
In Gordon, the factfinding portion of the discretionary decision was not protected by immunity. Id. In this case, Harmann alleges that Waupaca was required to follow the Manual, and is negligent for not recommending the signs which the Manual required it to recommend. If this were so, Harmann would have a point, since discovering the signs which the Manual required would be similar to the unprotected factfinding portion of the quasi-judicial decision in Gordon. However, as we stated earlier, the Manual does not require the original placement of any sign, so this argument must fail. Since Protic did not involve a similar “two-step” decision, it is inapposite.
In Harmann‘s reply brief, he states that “Waupaca County entered into a contract whereby it agreed to survey the town roads in the Township of Dayton....” Harmann neglects to clarify with whom Waupaca contracted. Harmann later claims that Waupaca‘s engineers “performed the survey and made engineering recommendations concerning sign placements in accordance with the Manual‘s provisions. Those recommendations were flyspecked by the state and submitted to the Township for approval.” Here, Harmann seems to concede that the state was the contracting party with Waupaca, and not Dayton. Nevertheless, it is not necessary to resolve the conflict of whether the state or Dayton contracted with Waupaca to survey and recommend sign placements for Dayton. Because Waupaca was the agent for whichever entity, it shares in that entity‘s immunity.