*1 Physicians Plus Insurance Corporation,
Subrogated-Plaintiff-Respondent,
v. Cоmpany, Defendant, Midwest Mutual Insurance Donald Theresa Mutual Fire Insurance Company, Municipal Franke, Wisconsin Mutual Insurance Company, Dodge County, Embertson, Robert Ru- Company, Township ral Mutual Insurance of Le- roy Schraufnagel, and Linus Defendants-
Appellants-Petitioners. Timothy Smith, Deceased, J. Plaintiff- Estate
Respondent, Department of Wisconsin, of Health and State Family Subrogated- Services, Health, Division of
Plaintiff-Respondent,
v.
Don-Er
Company,
Theresa Mutual
Insurance
Inc.,
Franke,
Donald
Ermanelda
Farms,
Franke,
Municipal
Company,
Wisconsin
Mutual Insurance
Dodge County,
Highway
Henken,
Robert
Com
Dodge County,
Embertson,
missioner for
Robert
Company,
Township
Rural Mutual Insurance
Leroy, Defendants-Appellants-Petitioners.
Supreme Court
January
2002. Decided
argument
00-1836. Oral
No.
June
*2
For Smith, J. there was a Eric A. brief Farnsworth Ross & DeWitt argument by Stevens, S.C., Madison, and oral Eric A. Farnsworth.
¶ 1. N. J. CROOKS, PATRICK This ais review of published opinion appeals, Physicians a of court Corp. Plus Insurance v. Co., Midwest Mutual Insurance App 2001 148, 933, WI 246 Wis. 2d 59, 632 N.W.2d affirming Dodge County the order of the Circuit Court granting partial summary judgment in favor Timo thy appeals J. Smith. The circuit court and the court petitioners both concluded that were liable for maintaining public consisting a nuisance, of tree obstructing sign stop branches of a view at a highway petitioner, intersection. Each Theresa Mutual Company, Insurance Farms, Inc., Don-Er Donald and (hereinafter collectively Ermanelda Franke, referred to homeowners"); as "the Frankes" or "the Wisconsin Mu nicipal Company, Dodge County, Mutual Insurance Highway Dodge Henken, Robert County, Commissioner for (hereinafter collectively Robert Embertson re "Dodge County"); ferred to as and Rural Mutual Insur (hereinafter Company Township Leroy, ance collectively Leroy"), referred to as the "Town of indi vidually a law, claims it is excluded as matter of from failing for remove tree branches ob structing stop sign. a view of
88
begin reviewing
by discussing
case
this
We
relationship
confusing,
important,
be
but often
negligence.
public
Both the circuit
nuisance and
tween
appeals
held that the defendants
and the court
court
begin
maintaining
public
a
nuisance. We
liable for
were
analysis by defining public
a
nuisance as condition
our
substantially
unduly
activity
interferes
which
or
place
of an
of a
or with the activities
with
use
community.
Realty Co.,
v. Oriental
272
entire
See Schiro
(1956); see also State v.
546,
N.W.2d concluding many exists).1 factors this court's decision Brown
We then discuss Railway Co., 575, 224 Terminal Wis. v. Milwaukee reargument, N.W. 385 199 Wis. 748, on N.W. (1929), provides proper frame we conclude which clarify determining liability here. work to We work negli relationship public nuisance and between the gence maintaining and hold that *11 following public plus elements, on the nuisance is based public policy. itself; First, of the nuisance the existence public notice of the second, actual or constructive public the third, that failure to abate nuisance; and the injuries. plaintiffs For the of the a cause nuisance is comparing apportioning responsibility purposes of determining contribution and for the accident for among parties, culpable all of conclude that when we topic a separate function of nuisance as primary "The within which it is mark out the area the law of torts to subject public to neighbors his the for one to unreasonable fumes, immorality physical of noise, vibratiоns, or the risk Contributory Negligence Nuisance: Seavey, A. Warren harm." (1952). Mysteries, 65 Harv. L. Rev. and Other affirmatively proven, those elements are a defendant's public analogous failure to abate a nuisance is to negligence per public policy se. We also look to consid similar erations because we conclude to that negligence, liability maintaining public a grounds. public policy can be limited on Applying pre- ¶ 3. this framework to the facts properly here, sented we conclude that circuit court obstructing concluded that the branches tree of view stop sign public in a resulted a nuisance as matter of photographic depict- law.We conclude from the evidence ing stop sign tree date of the accident, genuine are there no issues of material fact to preclude summary judgment a determination that the condition Furthermore, was nuisance. we con- genuine clude that there are no issues of material fact regarding whether all three defendants had actual or constructive notice of the condition. The tree branches obstructing stop sign were the view of the for at least two to three months before the accident, and is a this length impute sufficient of time to Frankes, notice Dodge County, Leroy. Regarding and the of Town whether the failure to abate the obstructed view stop sign affirm, was cause the accident, we the court appeals' disputed conclusion that reasonable infer- preclude summary judgment ences on that issue. We conclude, further however, that if causation is estab- purposes comparing appor- trial, at lished for the tioning responsibility determining and for contribution among culpable parties, a defendant's failure to abate the analogous negligence per nuisance is se.
¶ 4. then We turn to each individual defendant's arguments public policy considerations relieve liability. reject each of We all defendants' policy arguments Dodge and conclude that the Frankes, *12 County Leroy relationship and the Town all had a to at that the issue stop sign the tree involved or either trim nuisance —to in a to abate the duty resulted obstructing sign. the view of the We stop the branches not any does relieve public policy further conclude liability.2 of the defendants of
I. FACTS A. The accident case, the pertinent For the of this purposes
¶ 1996, J. July 21, Timothy not On dispute. facts are Smith) (hereinafter passenger, Tracey Smith his recognize also us to review the parties We asked regarding court to the circuit appeals' court of recommendation conclusion, jury In its the form of the verdict on remand. might jury he asked to suggested that appeals court of the obscured responsibility for the accident between "apportion (and negligence possibly Smith's stop and Diane Smith's sign )." Corp. Plus Ins. v. contributory negligence... Physicians Co., 933, 2d 246 Wis. App Ins. 2001 WI Midwest Mut. appeals' court argue that 59. The Frankes N.W.2d for reasons. jury improper recommendation was several verdict arguments were based on note, however, that the parties' We language above opinion, quoted not the appeals' slip the court of appar the court publishing, Before published opinion. in the form. The language relating to the verdict ently revised was characterized change language significantly altered what do recommendation, merely suggestion. a While we not to as court of directly arguments regarding the parties' address parties' attention suggestion, we direct appeals' verdict form paragraph, we discuss the opinion. this In that to 32 of purposes for the negligence conclude that analogy per se. We accident, responsibility apportioning comparing when among culpable parties, determining contribution maintaining liability for to establish all the elements a defendant's failure affirmatively proven, nuisance have been analogous negligence per se. to abate a nuisance is *13 (hereinafter Leistico), injured Leistico an were in acci- Highwаy Ledge at the Z dent intersection of and Road, Leroy, Dodge County. in the Town of in Smith was driving motorcycle Highway his north on Z and Diane (hereinafter Diane), Timothy C. Smith of no relation to driving Ledge Smith, was her car on eastbound Road. sign stop requiring Ledge There is a stop traffic on Road to Highway on Z; however, traffic Diane failed to stop motorcycle. and her vehicle collided with Smith's "stop sign Diane stated that she to failed see the ahead" stop stop sign failed and to for the because there were visibility obstructing stop sign. tree branches of.the drinking approximately Diane later admitted to four or day open five beers the of the accident, that she an had can of beer in her car, and that after accident she removed full beer cans from her car and hid them in a culvert. sign stop
B. The tree and the ¶ 6. The tree at issue is located on Donald and property partially Ermanelda3 Frankes' and is within Leroy's highway right-of-way. day the Town of The after Leroy personnel inspected accident, Town of tree branches and decided remove them. Linus Schraufnagel, neighbor Leroy the Frankes' of Town Chairman, one of homeowners, Franke, Donald subsequently trimmed at the branches issue. stop sign requiring stop
¶ 7. The traffic Ledge by Dodge County Road was installed and County's right-of-way. Highway within Z is an highway. speed Highway arterial The limit on both Z Ledge per Road is 55 miles hour. 3 We note that at accident, the time of the Ermanelda Leroy Franke was the Town of Assessor. foliage checking Although
¶ 8, not at aimed Dodge County personnel checked the vis- obstruction, signs county ibility The in the on an annual basis. inspection purpose to determine the reflec- was night signs usually tivity county at done and was inspection, county Town In addition to the November. personnel inspected Leroy en- all of its roads and good April signs stop its were in condition sured inspect year. not town, however, also does each *14 stop signs. specifically of for obstruction proceedings C. Trial Court Following passen- accident, and his the Smith 9. Dоdge County
ger, separate Leistico, in filed actions injuries resulting from the Circuit Court for collision against plaintiffs filed suit Diane Smith. both with Leroy Dodge County,4 Town of and Frankes, the constructively claiming actually all were either developing negligent hazard and all were aware including remedy failing hazard, in to take action to obstructing trimming the view of the tree the branches stop sign. the Frankes' claimed that of the Smith also tree constituted a nuisance to maintenance of their highway. purposes For of the and unobstructed use safe pretrial trial, and the two cases were administration consolidated. defendants, Frankes, the Town All three summary judg- Leroy, Dodge County, moved for and company subsequently Diane Smith and her insurance and dis Pierringer into with Leistico were
entered releases also company from Diane and her insurance her case. missed Smith, Timothy did Pierringer into a with but entered release against the other before commenced his lawsuit so even Smith 182, 124 N.W.2d Pierringer Hoger, Wis. 2d defendants. See v. (1963). they claiming obligation ment had no to trim in the tree visibility stop sign. order to maintain of the On June 1998, the Bissonnette, Honorable Andrew E denied the Frankes, Mutual, motions. The Theresa Town Leroy, Dodge County petitioned ap- and the court of peals summary to review the denials of the motions for judgment; petitions however, all three were A denied. subsequently January trial date was set for 10, 2000. voluntarily Leistico then subrogated claim, her her dismissed but Physicians carrier, health Plus Insurance Company, party. remains a agreement
¶ 11.
court,
In December
parties,
with the
took the
case off
trial calendar
judgment.
summary
and
invited motions
filed
Smith
partial summary judgment
a motion for
against
Leroy,
the defendants,
Frankes,
the Town of
Dodge County.
The three defendants also renewed
summary judgment. May
their motions for
10,2000,
.On
briefing
arguments,
after
the circuit court issued
finding
Leroy,
an order
the Frankes, the Town of
Dodge County
causally negligent
all
as a matter of law
failing
to meet their duties to trim the tree and
*15
remedy
July
2000,
the hazard. On
6,
the circuit court
supplement
issued a
to its
and
decision
order. The court
failing
concluded that in
to trim
tree
the
the
render
stop sign
on
visible
the date
the accident,
of
the
public
defendants had maintained a
nuisance.
Appeals'
D. Court of
decision
Leroy,
Dodge
¶
Frankes,
12. The
the
Town
County petitioned
appeal
for leave to
the circuit court's
Appeals,
iy
non-final
granted
the
order and
Court of
District
petitions. Relying
the
Brown
on
v. Milwaukee
Railway Co.,
Terminal
575, 224
199 Wis.
on
748,
N.W.
reargument,
(1929),
199 Wis.
¶ 14.
The court
then turned to
County's duty to ensure that the tree
not
branches did
visibility
stop sign.
rejected
obscure
The court
Dodge County's argument
public policy
that the
consid
preclude municipalities5
erations in Walker
from liabil
ity
vegetation.
for failure to cut
The court concluded
holding
that Walker did not affect the
in Naker v. Town
rehearing,
Trenton,
654,
38,
62
2dWis.
215 N.W.2d
(1974), holding
62 Wis. 2d
Wisconsin Stat. 349.065 states: 349.065 traffic Uniform control devices. Local authorities place devices, upon shall highways and maintain traffic control jurisdiction regulate, warn, guide under their or inform traffic. design, operation installation or use new traffic control placed devices and maintained local authorities after the *17 devices, traffic control and to maintain local authorities manual7 requiring of Transportation's the Department that attention to ensure special to pay municipalities do not obscure the trees, shrubbery... "weeds, [and] Id. at rejected also 34. The court face of any sign." ¶ 86.03(3) (4)8 § and pro that Cоunty's argument Dodge of the from the branches trimming the county hibit manual under s. adoption traffic control devices of the uniform 84.02(4)(e) January 1,1977, all After shall conform to the manual. by placed and maintained local authorities traffic control devices manual. shall conform to the 84.02(4)(e), § states: The also cited which court (e) establishing adopt department a manual shall upon highways system devicesfor use the of traffic control uniform and, system so far as shall be consistent with of this state. The recognized nationally practicable, standards conform to current for traffic control devices. clean kept proper position, signs All traffic should be all times. legible
and at maintenance, adequate a suitable schedule for To insure signs cleaning replacement should be estab- inspection, and of police highway department, and other Employees the lished. they require travel on employees that governmental whose duties damaged report any encouraged or highways should be the opportunity. signs first at the obscured necessary to see should be taken Special and action attention weeds, trees, shrubbery materials do not construction any sign. the face of obscure (4) 86.03(3) § state: Wisconsin Stat. (3) Any IN HIGHWAY. TREES AND SHRUBS PLANTING any highway may, adjoining with owning occupying person land or authority maintaining highway, the approval trees, hedges the side of or on plant, maintain shrubs cultivate and person's contiguous land. highway to and within 10 feet of by only trees, hedges cut or removed or shall be Such shrubs authority by abutting occupant or land or owner highway. having control Frankes' 83.015(2)(a),9 § tree. Relying the court con cluded that the county was not to trim powerless tree branches, and that if "even it could act only requesting others to trim the requiring offending Id. at ... branches it had a to do so." 'duty' 36. Finally, court addressed the Town Leroy's liability and specifically rejected the argument statutes, that several § Wis. specifically 349.065, Stat. § 83.025,10 § 81.01(H))11, establish a public policy *18 (4) OR CUTTING INJURING TREES ON HIGHWAY.No down, person break, girdle, any shall cut bruise the bark or in injure, any person's other manner or allow animal under that injure, any public private trees, hedges control to shrubs or growing highway, except within the as the owner thereof or the
public authority maintaining highway may down, the cut trim and trees, hedges purpose remove conducing shrubs and the for of and improvement to the benefit and highway of the owner's land or the facility. 83.015(2) (a) § Wisconsin Stat. states: DUTIES, (2) (a) Except provided POWERS AND as under (b), par. county highway purchase committee shall and sell county machinery by board, county road as authorized deter- piece county by mine whether each aid construction shall be let by day labor, contract or shall be done enter into contracts in the county, necessary arrangements name of the and make for the proper prosecution high- of the construction and maintenance of ways provided by board, county private enter lands -with employes their to remove weeds and brush and erect or remove necessary keep highways open fences that are during for travel winter, expenditure highway direct the maintenance funds provided by county tax, received from the state or meet from time county payrolls to time at the seat to audit all and materials claims resulting and highways vouchers from the construction of and perform imposed by by county other duties law or board. § Wisconsin Stat. county 83.025 allows boards to make changes county highway system. trunk 81.01(10) "(10) § Wisconsin Stat. any states: Enter pri vate employes agents lands with their purposes for the prohibiting hazard created for a the Town's Relying right-of-way. in the Town's a condition Chapter provisions court stated that the 81,12 obligate public policies which towns "indicate statutes supervise roads, and which town to maintain impediments empower to safe travel remove them to along by vegetation growing town roads." Id. occasioned argu- rejected ¶¶ the Town's The court also at 38-39. duty County's "non-delegable" to main- ment that the liability. sign precludes stop Id. at the Town's tain the ¶¶ 41-42. concluding that none of the defen- 16. After liability, precluded the court discussed from
dants were negli- application of court's the circuit gence concepts. that there then concluded court preclude genuine fact to issues of material were no summary judgment tree branches created that the knew or each of the defendants nuisance and that Id. The court the condition. have known of should however, of causation concluded, issue further judgment summary inappropriate on the was present record. re- how conclusion, In the court discussed *19 suggesting apportioned,
sponsibility be should products form used court the verdict trial negligence apportioning between causal cases— plaintiff "may product on the be suitable — removing such erecting or removing and brush and of weeds reasonably free highways may necessary keep fences as be during the season." for travel winter open from snow and 12 § § 81.01 and 81.15. on both Wis. Stat. The court relied 81.15, recog promptly § it cited Although appeals the court on that statute liability could not be based that the town's nized allegation "highway defect." no because there is
99 present jury "[T]he stated, Id. at facts." 67. The court might apportion responsibility be asked to for the stop sign accident between the obscured and Diane (and negligence possibly [Timothy] Smith's Smith's .)" contributory negligence . . . Id.
II. STANDARD OF REVIEW
independently
¶ 18. We
review the circuit court's
grant
summary judgment by applying
or denial of
same standards and methods utilized
the circuit
benefiting
analyses
court, and
from the
of the circuit
appeals.
court and the court of
See Minnesota Fire &
Paper Recycling,
¶64,
Cas. Ins. Co. v.
244
8,
2001 WI
Summaiy judgment
Wis. 2d
III. PUBLIC NUISANCE AND NEGLIGENCE
begin
by defining public
¶ 19. We
nuisance,
first
reviewing
and then
the seminal case that links
negligence concepts,
nuisance and
Brown v. Milwaukee
*20
Railway Co.,
224
575,
748,
199
Terminal
Wis.
N.W.
(1929).
reargument,
588,
227 N.W.385
Wethen
Wis.
summary judg-
the record to determine whether
review
appropriate
ment is
on the issue whether
tree
obscuring
stop sign
public
in a
branches
resulted
Specifically,
nuisance as a matter of law.
we examine the
public
record to determine the existence of the
nuisance
public
itself,
or
nui-
actual
constructive notice
public
sance, and
whether
failure to abate
plaintiffs injuries.
nuisance was a cause of the
By
focusing
relationship
¶ 20.
first
on the
be-
negligence,
attempt
tween
nuisance and
we
clarify
relationship
possible, given
as much as
confusing precedent.13
on this court's
somewhat
Based
precedent, mainly
negligence
Brown, we hold that
concepts
respects.
overlap
First,
nuisance
liability maintaining
in several
for
a
nuisance can be based
negligent
main-
on either
or intentional conduct that
activity
substantially or
tains a condition or
unduly
which
public place
of a
interferes with
use
with
community. Second,
the activities of an entire
both
concepts
causation,
notice and
oftentimes reserved
negligence
required
cases, are
to establish
maintaining
purposes
Third,
a
nuisance.
for the
comparing
apportioning responsibility for the
determining
among
accident, and for
contribution
cul-
recognized,
"slippery
As this court has
nuisance
is
term,"
way to
and often the best
determine whether
by determining
whether or not there is
for the
exists
Light
&
Co. v. Columbia
activity or condition. Wisconsin Power
see also Schiro v.
(1958);
County, 3 Wis.
1, 10,
2d
87 N.W.2d
(1956) ("It
Co.,
Realty
Oriental
272 Wis.
pable parties, that when all of the elements we conclude maintaining publiс for a to establish affirmatively proven, a defendant's failure to abate are analogous negligence per public a nuisance is se. negligence, liability Finally, similar to maintaining by public public a nuisance can limited be policy considerations. activity
¶ 21. A nuisance14 is a condition or which unduly public the use of land or of a interferes with place. public Schiro, A 272 at 546. nuisance is a Wis. activity unduly substantially condition or which or public place interferes with the use of a or with the community.15 (quoting of an entire See id. activities Seavey, Contributory Negligence A. Warren Nuisance: 14 or public private. We note a nuisance can either be Here, however, focusing solely In public we are nuisance. Schiro, following quoted approval language this court with the used, defining private commonly [nuisance] a nuisance: "As activity unduly connotes a condition or which interferes with the or public place. use land of a Conduct which interferes solely relatively private with the use of a small area of land is called a private tortious but not criminal is nuisance." 272 Wis. at 546. 15 definition of the public This nuisance is consistent with (Second) public
definition of nuisance in the Restatement (1979): § 821B Torts
(1) public right A nuisance is an unreasonable interference with a general public. common to the ' (2) may holding Circumstances that sustain a that an interference public right following: a is unreasonable include the with (a) significant Whether the conduct a interfer- involves health, public public safety, public ence with the the convenience, peace, public public or comfort or (1952)). Mysteries, and Other L. 65 Harv. Rev. 984 number of affected does not define a people strictly Farm, Inc., State v. Quality Egg nuisance.16 (1981). 506, 520, Rather, 2d Wis. N.W.2d factors, others, court considers many including, among the nature of the of the use activity, reasonableness location and the property, activity, degree or character of the inflicted or injury right impinged Id. As as this court defined a upon. early nuisance with ob regard highways, stating: "Any struction in or enсroachment upon highway, which unnecessarily incommodes the lawful use of impedes . highway by such nuisance . . ." public, *22 (1875).17 Goodrich, Hubbell v. 37 Wis. (b) statute, proscribed is by; whether the conduct ordi- regulation,
nance or administrative or (c) continuing whether the of a has conduct is nature or effect, produced permanent long-lasting and, a or as the actor know, significant upon or has has a knows reason effect public right. (Second) Torts, g Comment to The Restatement of (1979), § public 821B echoes this idea that a nuisance is not involved, by the of in the people defined number does so public highway. context of a not, however,necessary community It is that the entire be affected nuisance,
by long public a so as the nuisance will interfere with public right come in contact with it in the exercise of a those who community large. or it otherwise affects the interests of the at The nuisance, highway public although public no obstruction a is a of travelling upon highway or wishes to travel on it at the one many cases, community may time. In the interests of the entire be by danger a affected to even one individual. added.) (Emphasis sheds development The historical law nuisance, light on the definition of and its role
further tort law. requires
¶ The central issue in this case us to 22. relationship examine and define between specifi negligence. appeals nuisance and court rejected cally arguments that the circuit the defendants' by injecting notion of into court "erred 'nuisance' its analysis, or it confused the issues of nuisance and negligence, simply or that it could not determine the summary judgment." Physic a existence of nuisance App Plus, Instead, ians 2001 WI the court language reasoning specifically relied on from Brown, where this court concluded that the defendant maintaining consisting of a nuisance, was liable dead and rotten tree located between the sidewalk and appeals language the curb. The court of relied on from concluding any tree, that "a which Brown 'because [its] change in structure . . . becomes menace to the safety street,' of those who travel the is a nuisance." Physidans App (citing Plus, Brown, 148, 44 2001 WI 589). appeals 199 Wis. at We conclude that court of remedy rights protecting [private Parallel with this civil in land nuisance], entirely developed separate principle, there an that an crown, infringement rights general public, of the appear purpres- was a crime. The earliest cases to have involved tures, upon royal which were encroachments domain or the public highway, might by be redressed a suit the crown. enough superficial There was of a resemblance between the *23 way blocking private right blocking public of a and the of a highway keep calling men contented with the latter a nuisance well; public nuisance, as and "thus was born the that wide term highways remedy came to include The which obstructed exclusively century, remained a criminal one until the sixteenth recognized private when it was that a individual who had suffered special damage might have a civil action in tort for the invasion of right. the Torts, Page Keeton, § W Prosser and Keeton on the Law 86 (5th (footnotes omitted). 1984) ed. 104 analysis correctly Brown; therefore, we on focused its framing the case the seminal Brown as first discuss relationship negligence.18 and nuisance between large the between Brown, tree stood In 23. City Milwaukee. in the sidewalk and a street prior to the time Brown, at For some 199 Wis. decaying. 9, Id. On June and accident, the tree was dead striking plaintiff suddenly fell, 1925, the tree subsequently injury. plaintiff causing The Id. serious property, Terminal Milwaukee of the the owner sued jury Railway for the a verdict returned Co., and the initially majority appeal, plaintiff. of this court On responsibility primary holding for reversed, city belonged maintaining rather than to the the tree private Id. at 585. landowner. origi- reargument, its the court vacated 24. On opinion in favor of the affirmed the verdict nal plaintiff. relationship between
The court discussed "Negligence stating: negligence, of the ordinarily in an element an essential defendant is not damages оf a nuisance. reason sustained action for creating wrongful in act on the action is founded negligence maintaining defendant, it, and the Brown, exceptional 199 cases, not material." unless 18 can remedies that are different note that there several We 84,§ 66 C.J.S. Nuisances in nuisance cases. See pursued he (1998) ("Modern summary abate include for a nuisance remedies abatement, action at law injunction or ment, equity suit not a nuisance This case is prosecution.") damages, and criminal Milwau in Brown v. like Rather, plaintiffs abatement case. Co., 748, 575, Railway 224 N.W. 199 Wis. kee Terminal (1929), plaintiffs reargument, 199 Wis. 227 N.W. of a maintenance resulting from the seeking damages here are resulting consequences such, injurious "[T]he As public nuisance. nuisance, nuisance, produce acts which rather than from the § Nuisances of action." 66 C.J.S. the cause constitute (1998). *24 Galusha, v.
atWis. (quoting Lamming 589 31 1024 N.E. (N.Y. 1892)). The court held that for maintain- liability ing a nuisance is based on "the public degree danger Brown, even existing with best of care." at 199 Wis. 381). Law, (quoting Ruling Case The court p. noted, then there is a "class of meaning cases" — cases where is liability based on maintenance of a public nuisance— where the existence of a public nuisance not create liability does unless the defendant had notice Id. In of the danger. cases, this class of held it court must be shown "either that the defendant of the knew ... or that such danger condition had existed for such that, of time length by care, the exercise of ordinary defendant to have ought discovered the and to danger have it removed before were injuries sustained by plaintiff." Id. at 590.19 The court specifically addressed Brown distinguishes liability maintaining for public a liability creating nuisance, nuisance from a public by requir- ing actual or constructive notice in public maintenance distinction, nuisance cases. Based on this interpret we Brown as essentially dividing public nuisance into cases two classes. The class, nuisance, public first maintenance of a liability bases the defendant's failure to abate a nuisance of which the defendant had actual or notice. constructive The defendant did affirmatively nuisance, not create the so necessarily predicated on the defendant's notice of the hazardous condition. This is the kind of nuisance are case we faced with here. In contrast, the second class of cases focuses on the defendant's creation nuisance and require likewise does not proof that the defendant had actual or constructive notice of the condition. hazardous concurring opinion misreads this distinction inter- Brown as
preting requiring showing negligence as an maintaining essential element for nuisance. concurring Concurrence at 83. The opinion focuses on the language, "by ordinary care," the exercise of but when examined for the to remove nui- duty the basis landowner's *25 there, tree. sance the dead removing
In the menace of the dead tree the lotowner is any duty not performing imposed upon public. He is discharging duty simply which common law imposes upon him as the owner of a tree that has safety become a menace of to the those who travel the street.
Id. at 591-592. The essence of the opinion, addressing between maintenance of a nui- relationship public sance and is stated in negligence, this paragraph: by
One who maintains a nuisance created another is injuries danger hable for sustained because just clearly incident if he thereto as as had himself danger place. created the in the first "If the or owner occupier property continues nuisance created others, liable, thereon he is not because he owns occupies premises, but because he does not abate the nuisance." 392).
Id. at 590 Law, 20 Case (quoting Ruling p. Brown, court decided other 25. Since this has However, nuisance cases. we note that public although referenced the between the cases relationship and the cases often seem to have negligence, nuisance confusion, created rather than clarified that rela morе See Jost v. Power 2d Dairyland Coop., 45 Wis. tionship. (1969) 164, 172 647 that the (noting concepts N.W.2d v. Raisanen exclusive); and nuisance are not negligence context, it is clear that the court's reference here relates notice of the whether the defendant has constructive negligence required. and that is not proof ordinary care" concurring opinion phrase uses the "exercise of so, context, doing Brown. misinterprets out of
107 Milwaukee, City 504, 35 Wis. 2d 129 N.W.2d (1967) that nuisance can be (recognizing grounded or intentional negligent holding but if the conduct condition does not create there negligence, no negligently maintaining Co., nuisance); Plesko v. Inv. 12 Wis. Allied 2d (1961) N.W.2d Brown (upholding applying framing issue in terms of responsibility placing because neither the landowner nor the city acted nuisance);20 remove a public Krejci Lojeski, v. 275 Wis. that Brown and Plesko reject argument We the Frankes' Co., v. Allied Investment 168, 107 (1961), 12 Wis. 2d N.W.2d 201 do not apply because the tree here did not the highway obstruct making itself. In argument, this claim Frankes that subse *26 Durand, Hei v. City quent cases, 101, 22 2dWis. 125 N.W2d Milwaukee, Peppas City (1963), v. 341 609, 29 Wis. 2d limit Brown to situations where no mainte (1966), 139 N.W.2d579 municipality nance of a the impediment is involved and reject argu within the control of the property owner. We this disagree ment because we the interpretation with Frankes' of Brown and Plesko the treatment in these subsequent cases. Hei, In property this court held the adjacent that owner the injuries not resulting sidewalk was liable for from defects in the arising growth sidewalk from the natural on of roots of a tree 22 property. owner's Wis. 2d at 106. court distinguished The Brown and Plesko because those not keeping cases did involve a (the highway street or in in repair, and those cases matter tree) Hei, wholly was within control property of the owner. 22 In Peppas, at Wis. 2d this made court the same dangerous distinction between a in driveway condition a Brown and Plesko. in Peppas, Wis. 2d at 618. holdings 29 court further on the expanded though distinction Brown decision was explaining original that as explained involving unsound because it was on based "sidewalk cases" liability statutory perform governmental for failure a func Id. For reason, tion. this Peppas explained the court in on that Brown court based reargument, liability on nuisance theo-
108
(1957)
if a
20,
(concluding
ries. controlling in present "that Brown and Plesko are not case." Id. at 619. properly applied
We conclude that Brown and Plesko are
Peppas,
unlike the facts in Hei and
we are
this situation because
highway.
the actual
of the
not concerned with
maintenance
Rather,
obstructing
we are concerned with tree branches
sign.
of a
The so called "sidewalk cases" are not
stop
view
sidewalks,
highway may
persuasive
although
because
include
highway.
predicated
here is not
on maintenance
Accordingly,
persua
we
not find the
cases"
because
do
"sidewalk
Bruce,
sive,
rely Hagerty Village
we do not
v.
82 Wis. 2d
Schill,
378,
208,
(1978),
262 N.W.2d102
Jasenczak v.
55 Wis. 2d
Towne, Inc.,
(1972),
198 N.W.2d369
Petroski v. Eaton Yale&
47
Foods,
617,
(1970),
Corpron
2d
53
v.
Wis.
Inc.,
178 N.W.2d
Safer
(1964).
2d
Wis.
N.W.2d
nuisance,
dealing
Although
solely
we are
with a
we
similarly
discuss the relation
private
note
cases
negligence.
Gray-Robinson
nuisance and
In Bell v.
ship between
Co.,
(1954), this court
Construction
265 Wis.
62 N.W.2d390
*27
distinguished
negligence and nuisance.
specifically
between
negligence are different kinds of torts. A nuisance
Nuisance and
used,
presents
degree
a
does not rest on the
of care
for
existing
negligence,
degree
danger
question
the
of
even
but on
nuisance,
wrongful-
To
a
with the best of care....
constitute
in the
themselves rather than in the
ness must have been
acts
them,
doing
requisite degree
of care in
failure to use
negligence.
therein lies the distinction ... between nuisance and
relationshiр
public
¶ 26. Based on the
between
negligence, especially
nuisance and
as discussed in
public
negli-
Brown, we conclude that
nuisance and
gence
respects.
public
First,
intersect
several
a
intentionally
negligently
nuisance can be either
Schiro,
maintained. See
at
Second,
272 Wis.
al-
though
concepts usually
notice and causation are
re-
negligence
liability maintaining
cases,
served for
for
a
public
requires
that the defendant had either
public
actual or constructive notice of the
nuisance and
public
that the failure to
abate
nuisance was a cause
injuries.
plaintiffs
purposes
Third,
for the
comparing
apportioning responsibility,
and deter-
mining
among culpable parties,
contribution
we con-
clude that when all of the
elements
establish
maintaining
public
a
nuisance have been affirma-
tively proven,
a defendant's failure to
a
abate
analogous
negligence per
Finally,
nuisance is
se.
negligence, liability
similar to
for maintain-
ing
by public policy
a
nuisance can be limited
Bignell,
considerations. See Walker v.
256,
100 Wis. 2d
duty;
The one is a violation of an absolute
the other a failure to use
degree
required
particular
care
circumstances—a
duty.
violation of a relative
Furthermore,
Patake,
530,
265, N.W.2d (1976). 526, 541, 2d 247 N.W.2d 74 Wis. First, a nuisance can be maintained 27. public recog- or intentional conduct.22 We negligent either and negligence public nize that this first intersection of under the first element for establishing nuisance arises (the exist- a nuisance maintaining nuisance), is where much ence of the and that negligence and nuisance are distinct emphasize We (as one,way torts, negligence just opposed is and that intentional) that a nuisance can be maintained. synonymous, negligence] [Nuisance and are not but describe torts, completely concepts, which constitute distinct dif- distinct consequences. A claim of
ferent in their nature and their negligent negligence, than a acts do nuisance is more claim nuisance; not, themselves, negligence a rather is constitute may merely type upon of conduct which for nuisance one based, thus, necessary ingredient negligence a of a is not be nuisance. (1989). 9, point § "The is 58 Am. Jur. 2d Nuisances they he negligence is a cause and cannot nuisance is result Co.,Inc., 506 distinguished otherwise." Culwell v.Abbott Constr. (Kan. 1973); Barry Lee A. see also J.D. & P.2d Lindahl, (Rev Ed) (2001) ("Negligence § Mod Tort Law 35.08 torts,. There are well separate are and distinct .. and nuisance nuisance."); 66 negligence and defined distinctions between (1998) ("[A] may exist § 555-556 C.J.S. Nuisances the elements of negligence. [while] without . . either with or general negligence frequently [as] coexist... nuisance and proceed in nuisance actions or negligence rule is not involved action.") (footnotes ings and not essential to the cause of is omitted). disagree with the concur Accordingly, respectfully we "allegations public nuisance based ring opinion's position that essentially negli action for negligent remain an conduct gence." at Concurrence
Ill complexity confusion is created.23 The of the relation- ship particularly evident, when a nuisance is negligently automatically maintained, because one *29 trigger liability by negligent wants to the defendant's public negligently conduct. When a nuisance is main- separate tained it is difficult to the condition—the negligent allegedly nuisance itself—from conduct that allowed maintenance Brown condition/nuisance. recognizes, liability maintaining however, that for a public depend nuisance does not on the defendant's negligence ordinary Brown, or want care. 199 Wis. at liability wrongful Instead, 589. is "founded on the in act [either negligently intentionally] creating or or main- taining [the nuisance]." imposed Id. The for damage by danger "the done inherent in the creation or maintenance of that which constitutes a nuisance." Accordingly, although negligent Id. either or inten- public tional conduct can in result maintenance of a liability maintaining public nuisance, a nuisance is predicated public on the existence of the nuisance itself.
23 "[T]hese torts negligence] may be, [nuisance frequently are, coexisting and practically inseparable, as where acts or omissions constituting negligence give also rise to a nuisance, and it is difficult at distinguish times to between actions of nuisance and negligence." those based on 58 Am. Jur. (1989). 9,§ 2d note, Nuisances however, that, 676-677 We even negligently maintained, when a nuisance is the nuisance claim negligence and the claim remain distinct conceptually. "In the case of a resulting negligence nuisance from nuisance such distinguishable case is negligence from the in that former is a condition that is the result of wrongdoing, surviving negligent act, while the latter involves the wrongdoing (1989). itself." 58 Am. Jur. § 2d Nuisances by public can arise either nuisance 28. Since negligent element nec- conduct, the first or intentional maintaining public essary prove nui- public only requires of the nuisance the existence sance inquiry appropriately focuses circuit court's The itself. dangerous condition,24and whether it meets on the public conclude that this nuisance. We definition correctly interpreted appeals Brown, case, the court of focusing first on the existence determining ob- whether the tree branches itself and stop sign structing in a resulted the view of the nuisance. nui- intersection between second concepts negligence are involves two
sance and
*30
negligence
for
cases—notice
oftentimes reserved
appropri-
that notice is
causation. Brown demonstrates
liability
imposing
ately requirement
for maintain-
a
ing public
stated in Brown that
nuisance. This court
a
a
of
cases are
"class
nuisance
maintenance
required
notice is
or constructive
where actual
cases"
danger does not create
mere
"the
existence
because
charge
liability,
as to
are such
unless the circumstances
[the]
of the
the existence
with notice of
defendant
danger."
the
Brown,
To demonstrate
In danger results, such cases where not from the tree, planting of the through but subsequent changes for which the responsible, defendant is not it is essen- tial to that it be shown either that the defen- dant danger knew of the incident to the maintenance of the tree or that such condition had existed for such length that, by of time ordinary care, exercise of ought defendant to have discovered danger and to have injuries removed it before by were sustained plaintiff.
Id. at 590. The here key is that a public nuisance, especially that was main- negligently tained, can result from changes that the defendant did not direct. The decaying tree Brown and the growing tree here,25 demonstrate that public nuisance can be maintained no action or direction on the part landowner. Accordingly, maintaining such a public nuisance requires that proof the defendant had actual or constructive notice of the public nuisance. We conclude, therefore, it was appropriate to require plaintiff establish that there was no genuine 25We specifically reject argument defendants' Plesko, Brown and are inapplicable here because both cases tree, involved a rotten whereas the tree here is alive. The reasoning of Brown clearly was not decaying, limited to rotten trees.
[Tjrees, properly placed, do not constitute nuisances. But when
tree, through decay
such a
any change
or because
in the structure
surroundings,
the tree or in its
safety
becomes a menace to the
street,
of those
may
who travel the
such tree
become a nuisance
which
adjoining
will render the
injuries
owner of the
lot liable for
*31
may
lawfully
which
be caused to those who
use the streets.
added).
114 actual or had that the defendants material fact issue of condition. hazardous notice of the constructive that cau- notice, conclude to we 30. In addition negli- concept for oftentimes reserved sation, another public prove required appropriately a gence to cases, is Accordingly, conclude, as did we claim. nuisánce maintaining public appeals, a for of court proof requires to abate the failure nuisance public injuries. plaintiffs of the a cause nuisance was pub- negligence and Another intersection comparison responsibility involves lic nuisance parties. among culpable find it use- apportionment We responsi- analogize conceptually allocation of ful to per negligence or bility public se26 to nuisance case in a purposes negligence For the matter of law. as a responsibility apportioning for acci- comparing among par- determining contribution and for dent maintaining con- responsible nuisance, we ties necessary to elements all of the that when clude maintaining public a establish public affirmatively proven have been —existence failure defendant's notice, and causation —a nuisance, analogous negligence to nuisance is abate provide allocation per for the In order se.27 contribution, responsibility determine and to duty, enjoined rule, of a the violation general "As a constitutes prоperty, person protection for the by law 1957). (4th ed. Dictionary Black's Law [negligence per se]." to the the comments with analogy is consistent This (Second) the Re (1979), § 821B where of Torts Restatement a matter negligence as nuisance to analogizes public statement § nuisance, to 821B Comment e In a discussion of of law. states:
defendant's failure to abate a nuisance could be treated as to analogous negligence per se—the failure to follow a legislatively prescribed By minimum standard. concluding that defendant's failure to abate a public nuisance analogous se, is to it negligence per allows to jury allocate responsibility among culpable parties, which is contributory consistent with negligence prin- in ciples § established Wis. Stat. 895.04528 and as ap- Schiro, See ("[Con- Schiro. in 272 Wis. at plied 547 tributory is a in an negligence defense action for damages occasioned aby grounded upon neg- analogy negligence There is a clear to the doctrine as a of matter negligence law, of law. ... In of the case as a matter of the standard by legislative normally defined enactment is a minimum stan- general principle
dard. applies ... The same to nuisance. (1) Contributory negligence. 895.045 COMPARATIVE Contributory NEGLIGENCE. negligence recovery does not bar an by any person action legal or the person's representative damages negligence resulting to recover injury in death or in person or if property, that negligence greater was not than negligence person against recovery sought, whom is any damages but allowed shall be diminished in the proportion negligence amount of person recovering. attributed to the negligence The the plaintiff he separately shall measured against negligence of each person causally found to be negligent. liability of person causally each found to be negligent negligence whose percentage causal is than less percentage 51% is limited to the total negligence causal рerson. attributed to that A found person causally to be negligent negligence percentage whose of causal more 51% or jointly severally shall be the damages liable for allowed. (2) Notwithstanding (1), CONCERTED ACTION. sub. if more parties or act accordance with a common scheme jointly plan, parties severally those are liable for all damages resulting action, from that except provided as in s. 895.85(5). City Niagara ligence."); Falls, also McFarlane v. see (N.Y. 1928) (Judge holding 391, Cardozo 160 N.E. negligence basis of the nuisance is the that where negligence apply). contributory principles conclude, We per analogy appropri- negligence se therefore, that respon- ately apportion the fact-finder's role to frames *33 among culpable sibility and to determine contribution parties public in a nuisance case. negligence Finally, that we conclude regard policy public
public
with
to
nuisance intersect
liability
negligence,
we
Similar to
considerations.
maintaining
public
liability
nui
a
conclude that
By
by public policy
can
limited
considerations.
sance
be
policy
examining public
our
we direct
considerations
question:
party
has
a
who
to the
Should
attention
public
harm to
a
which has .caused
maintained
policy
public
shielded from
on
another be
public policy
grounds?
application
consider
"The
solely
Coffey,
a
the court."
74 Wis.
function of
ations is
apply public
find
reason
2d at 541. We
sufficient
analyzing
policy
we are
here, where
considerations
alleged negligent
of a
for the
maintenance
public
public
nuisance,
of a
existence
nuisance.
duty
to abate
notice, creates
combined with
negli
danger.
As with
nuisance because
foreseeable
impos
gence, however, there are circumstances where
ing liability
Walker, would be unreasonable. See
Stores, Inc.,
v. Wal-Mart
265;
2d at
see also Miller
Wis.
(1998)
250, 264-265,
IV
A PUBLIC
EXISTENCE OF
NUISANCE
¶ 33.
now
We
turn
the record to determine
obstructing
whether the tree branches
the view of the
sign
stop
resulted in a
nuisance as a matter of
law.29Based on
definition of
nuisance from
Quality Egg Farm, Inc.,
State v.
104 Wis.
2d
(1981),
Pipeline
the view of the
resulted in condi-
substantially
unduly
tion that
or
with
interfered
place
of a
use
an
with
activities of
entire
community.
inquiry
Schiro,
See
and the court fact on these matters. of material issues photographs on our review 34. Based sign stop videotape record, conclude that "the in we largely, completely, from view not obscured was if approaching intersection in direction drivers Physicians traveling." Plus, 2001 WI was Diane Smith stop App view of the The obstruction photographs sign and the is evident the record. they videotape convincing the tree show are because they sign stop in on the were the condition and the vantage point accident, from same afternoon of the photo also shows Smith; and the second that of Diane as stop sign after the tree date, a later at the tree and was trimmed. *36 that none of the defen- further conclude 35. We dispute our conclusion evidence to
dants submitted videotape. photographs upon reached review County Leroy point Dodge to nor the Town Neither videotape. photos contrary The the to evidence judgment by argu- summary oppose however, Frankes, photos ing wind and are not reliable because that the visibility, may and that their have the altered shade deposition testimony disputes the tree whether sign. reject stop actually the We both obscured branches appeals arguments. concluded, the As court of the conjecture argument and does not is mere Frankes' first satisfy nonmoving obligation oppose party's to sum- the showing judgment by advancing specific mary facts the Physicians genuine dispute. presence See of a material App Baxter, Plus, 148, ¶ 48; see also Wis. 2001 WI (nonmovant demonstrate more than 2d at 312 must dispute). alleged an factual mere existence of argument, regard With second improperly acted contend that circuit court Frankes concluding deposition their that as a fact-finder any genuine testimony issue of material did raise not argue testimony indicated their fact. The Frankes' that only partially sign Frankes' was blocked. neighbor, rely testimony their a Town of on further stating Leroy supervisor, had trouble that he never although seeing stop sign, it he knew was there. We appeals did, court court of conclude, as the circuit genuine does not create the Frankes' evidence sign stop signifi- dispute that the was material factual coming cantly from view of a driver from the obstructed Testimony Ledge Frankes from the Road. the west persons neighbor, familiar with inter- all and their place in section, not evidence sufficient credible disрute obscuring the fact that the tree branches stop sign view the in a resulted nuisance. rely photographic Furthermore, we on the evidence physical because where evidence is in conflict with oral testimony, physical evidence must control. Chart v. Corp., 91, 111, General Motors 80 Wis. 2d 258 N.W.2d (1977); Lucynski, v. State 232, 238, 48 Wis. 2d *37 (1970); Bay Hardtke, N.W.2d889 see also v. Whitefish (1968) ("Physical 150, 153, 2d Wis. N.W.2d 259 may only testimony evidence not oral but, contradict if unquestionable, may irrefutable and it render testi incredible."). mony Accordingly, based on the undis puted photographic evidence, we conclude that the tree obstructing stop sign branches the of the view consti tuted aas matter of law.
V ACTUAL OR CONSTRUCTIVE NOTICE
genuine
37. Since we conclude that there is no
dispute regarding
material factual
whether the condi-
tion
nuisance,
constituted a
we now look at
any genuine disputed
whether there are
issues of ma-
regarding
terial fact
whether the defendants had actual
or constructive
Brown,
notice of the condition. Under
only
defendant is
liable for the maintenance of a
danger
nuisance if the defendant "knew of the
incident
the
to
of
maintenance
the tree or that such condition
length
by
had existed for
of
that,
such
time
the exercise
ordinary
ought
care,
the defendant
to have discov-
danger
injuries
ered the
and to have removed it before
plaintiff."
were sustained
the
May Skelley Co., 36-37, 2d 264 N.W.2d Oil 83 Wis. v. omitted). (footnote (1978) agree circuit with We the appeals
court and of the court that the hazardous condition existed for sufficient time to the allow the Dodge County, Leroy Frankes, and the Town remedy regard discover the and hazard. With to the yard they Frankes, in this tree was their and acknowl- edged seeing daily on a intersection basis. While they sign only stop "partially" maintain that the was testimony their is sufficient obstructed, to conclude they knowledge had at least constructive of the perhaps knowledge. condition, and even actual There- appeals, difficulty fore, like the court of we find "no concluding ought Frankes knew or to have posed known that the branches of their tree a hazard to by obscuring sign." stop traffic at the intersection Physicians App Plus, 2001 WI Dodge County
¶ 40. We also conclude that
and the
Leroy
Town of
had constructive notice. While both
municipalities
inspections of
conducted
roads and
signs,
inspections
April
were
conducted
non-fоliage
November, the
season. For the
rest
year, municipalities apparently
relied on citizens to
report hazardous roads and conditions. Two to three
length
representatives
months is a sufficient
of time for
municipalities
by,
to drive
be notified
Rombalski,
hazard. See Firkus v.
352, 359,
25 Wis. 2d
(1964) (nineteen days
VI. ¶ causation, of to the issue 41. We now turn summary judg- may be on whether causation decided keep disputed infer- in mind that reasonable ment. We summary judgment. preclude on ences a determination Regan, 339, 206 v. 2d N.W.2d See Wills 58 Wis. (1973). court that the issue circuit concluded summary judgment. appropriate was causation concluded that record, on the the court Based owing duty defendants, failing to remove obstruction In to cause accident. so, to do contributed stated, that that was fact, the circuit court "Toconclude utterly unsupported in accident is not a cause this appeals, logic." however, The court of fact, law disagreed causation, con- on reversed decision cluding disputed from the "that inferences reasonable summary preclude a on of record determination facts stop sign judgment was a that the obscuration injured." in which Smith was of the accident cause Physicians App Plus, 2001 WI appeals' agree decision 42. We with court in the is evidence issue of causation. There imme- alcohol that Diane Smith had consumed record diately prior fact, Diane told accident. In Smith police investigator consumed "4-5 beers" that she had during prior to the accident and admitted the two hours being possibly Based the influence alcohol. under disputed inferences, reasonable record, and the on the *40 agree appeals we with the court of "that reasonable fact differ the finders could on issue of whether Diane Smith's actions were the accident, sole cause of the that sign stop is, whether the tree-obscured was a substan- contributing ¶ tial factor the to accident." Id. at 62. The grant summary judgment circuit court's of on the issue inappropriate of causation was therefore on this appeals' We, therefore, record.30 affirm the court of obstructing decision that the tree branches of view stop sign public nuisance, created a that all three defendants had actual or constructive of notice disputed hazard, but that reasonable inferences make public the issue of whether the failure to abate the injuries plaintiffs inappropri- nuisance was a cause of summary judgment. ate for
VII. FAILURE TO ABATE A PUBLIC NUISANCE AS
ANALOGOUS TO NEGLIGENCE PER SE earlier, 43. noted As we conclude for that purposes comparing apportioning responsibility, of determining among culpable parties, contribution necessary when all of the elements to establish maintaining public for a nuisance have been affirma- tively proven, a defendant's to failure abate a analogous negligence per empha- nuisance is se. We size that this case comes before court on review of summary judgment the circuit court's decision. We previously correctly concluded circuit court however, note, We appeals, as did the court this suggest conclusion jury does not that a assigning verdict all or nearly all the hazard would not be sustainable. See causation Physicians Co., Plus Ins. Corp. v. Midwest Mut. Ins. 2001 WI 63, App 246 Wis. 2d simply N.W.2d We find summary issue inappropriate judgment on this record. condition constituted decided that the hazardous law, and that each nuisance as matter had or constructive notice defendant actual remaining element, causation, nuisance. summary appropriately however, is not decided judgment disputed here reasonable inferences because question remains a remain. The issue causation *41 necessary liability prove jury, for all to so elements maintaining affirmatively public a are not nuisance however, that if conclude, in this case. We decided purposes trial, at for the causation is established responsibility comparing apportioning and and deter- parties, among culpable mining each contribution public nuisance would failure to abate the defendant's negligence per analogous se. be to PUBLIC POLICY
VIII.
¶
intersection be
44. We now turn to the last
negligence
public
and determine
tween
nuisance
liability
from
for
each
is excluded
whether
defendant
Physician
App
public policy
Plus, 2001 WI
reasons. See
("Whether
¶
Walker,
148,
12; see
¶ A45. of care exists under Wisconsin law "whenever it was foreseeable the defendant that his might or her act omission to act cause harm to some person." R., ¶ other 68, Gritzner v.Michael 20, 2000 WI Liability 235 Wis. 2d 906. N.W.2d breach of duty duty may here, to abate — nuisance — precluded, public policy. be however, limited or based on Gritzner, See 2000 WI each Whether of the defendants this case excused from based public policy appropriately on considerations is before previously this court based the сonclusions we have reached in this case. discussing policy 46. Before consider- argue
ations, we note that none defendants no one is liable for the hazardous condition. Instead, the Dodge County, Leroy point Frankes, Town of fingers claiming other, at each that one or both of the *42 maintaining public other defendants are for liable the conclude, however, nuisance.31 We that all three defen- duty public dants had a to abate the nuisance and are maintaining therefore liable for a if nuisance, causation is trial. established at A. Frankes
¶ 47. The Frankes frame the issue in this case in
maintaining
stop sign
argue
they
terms of
the
and
that
failing
are not
for
liable
to abate the
(1)
municipalities,
because
the
not
homeowners,
31We note that
Leroy
of
explicitly
Town
takes no
position regarding
duty
liability
of the Frankes.
the stop sign;
to maintain
non-delegable duty
have
(2)
in
considerations
policy
recognized
and Miller preclude
their
Before
Walker
liability.32
however, we note
addressing
arguments,
signifi-
these
tree
located on Frankes'
offending
cant fact:
is
tree,
land. As it was their
the Frankes' had-control over
they
the fact
it,
which was demonstrated
of the tree facing
the tree branches on the side
trimmed
relating
arguments
The
also make two
to com
Frankes
First,
they
not have a
obligations.
they argue that
do
mon law
They
refer to
duty
principles.
specifically
under common law
(Second)
(1965), concluding
§ 363
"that a
Restatement
of Torts
by. the
physical
no
harm caused
landowner incurs
property."
his
natural condition of his land to those outside
Co.,
565,
Transp.
&
91 Wis. 2d
Chicago
Wells v.
North Western
(Ct.
1979).
569,
reject
argument,
this
App.
We
¶ 49. The Frankes' that should be also liability general public policy relieved of based on Relying grounds in on set forth our case law.
policy liability Walker, exclusion from stated in 100 Wis. acknowledgement of 2d at and this court's six public policy Miller, considerations; see 2d at Wis. liability imposing 265, the Frankes contend that 264— (1) imposition liability expense here would an and be proportion liability motoring public to the out (2) place municipalities; would an unreasonable crops (patrol to or not burden and decide what cut what (3) liability plant) to landowners; will cause just stopping enter a field where there is no sensible or point. reject argument
¶ 50.
first
the Frankes'
We
applies
public policy
Walker
because the
exclusion
municipalities
eliminating
related to
that case
adjacent
every highway
at
visual obstructions
"areas
intersection."
B. Dodge County's
¶ 53. We now turn to whether by public policy is limited considerations. Be- turning Dodge County's legal arguments, fore we relationship Dodge County, note the tree, between stop sign. Highway highway and the Z anis arterial Dodge County stop sign requiring installed drivers stop proceeding Ledge Furthermore, when Road. Dodge County personnel annually through drove county visibility signs. inspection to check the usually during night, pri- November, was mary purpose at and the reflectivity.
was to determine Dodge County argues ¶ 54. it is not liable for failing to trim the branches of the Frankes' tree because (1) public policy municipalities Walker, under the in (2) may vegetation; not be held liable for failure to cut Dodge County Brown, under cannot be liable because it right way does not maintain either the or the (3) property; Dodge County prohibited Frankes' trimming from the Frankes' tree branches under Wis. 86.03(3) (4). § argument Stat. and We address each in turn. public policy First, based on the discussion Dodge County municipality Walker, contends that a vegetation
cannot be held liable for failure to trim visibility. Dodge County order to assure motorist con- here, tends that Walker controls and that as a matter of disagree. Walker, law it cannot be held In liable. We *46 plaintiffs in were a traffic accident and sued both the county charge maintaining town and in the roads. plaintiffs alleged municipalities The that were negligent failing adjacent in in to trim weeds the areas they overgrown, roads, to the and because were so Walker, weeds obstructed the view of the intersection. 100 2d at Wis. 258. This court declined to assert that municipalities duty have "an affirmative to cut roadside vegetation visibility," in order to assure motorist and public policy "municipali- declared as a matter of that exposed liability" ties should not be to common in law these Id. circumstances. at 266. court reasoned
133 place would an unreasonable that such upon municipalities, unmanageable and that burden height density vegetation would become "the nearly every in intersection accident case." Id. factor recently applied appeals ¶ 56. The court of Walker vegetation case, in roadside Estate Robert another Wagoner City App Milwaukee, 292, v. 2001 WI Wagoner, In 2d 382. the court of Wis. N.W.2d distinguish municipality appeals refused to between a vegetation municipal- and a that does not cut roadside ity vegetation, negli- that cuts roadside but does so gently. policy ¶ on the same Id. at 8. Based concerns appeals Walker, enunciated the court of refused to municipal liability for failure to cut roadside create vegetation. ¶ Id. at 10. Dodge County argues policy con- 57. that the (and Wagoner) subsequently apply
cerns Walker concluding municipalities here, failing are not liable vegetation, vegetation even if the
to cut is sign. obstructing stop contrast, In the view of Smith apply stop does not Dodge County here because a contends Walker sign involved, and an affirmative is has duty stop sign to maintain under Wis. § agree Smith, court, Stat. 349.065. We with the circuit appeals and the court of that Walker "should not be sign, to circumstances where a traffic control extended just general visibility intersection, and not at the Physicians App Plus, obscured." WI Dodge County's ¶ 58. We decline to conclude that by public policy is limited because under the County Dodge law, an statutes and case duty had affirmative stop sign. to maintain the Stat. Wisconsin § place states, "Local authorities shall 349.065 *47 upon highways maintain traffic control devices under jurisdiction regulate, guide their warn, or inform added.) (Emphasis traffic." Furthermore, the statute requires that local authorities use and maintain such according Department traffic control devices to the Transportation's Id.; manual. see also Wis. Stat. 84.02(4). § requires signs The manual "Alltraffic should kept proper position, legible be clean and all at requires municipality times." The manual also "inspection, cleaning replacement" schedule and and "Special necessary states that attention and action shrubbery should be taken to see that weeds, trees, any construction materials do not obscure the face of sign." express recognitions county's Based on these of a duty signs, to maintain traffic control we refuse to Dodge County conclude that is excused from such a duty regarding stop sign placed it in this case. statutory requirements, 59. In addition to the prior support this court's decisions our conclusion. In Trenton, Naker v. Town 2d 654, Wis. 215 N.W.2d rehearing, 38 on 62 Wis. 2d 660a, 217 N.W.2d665 (1974), explicitly sign this court "A stated, once erected by legislative properly action must be maintained ...." municipality duty stop sign As the with the to erect Ledge Highway at the intersection of Z, Road and Dodge County appropriately took action to erect the stop sign, subsequently duty, also had a based on sign. the ing law, statutes and case to maintain that Accord Department Transportation to the Manual, Dodge County's duty encompasses maintenance assur ing visibility taking "necessary action" to assure the stop sign duty face of the is not obscured trees. This any could not be stated clearer. affirming duty, recognize In this we also shift, policy significantly concerns of Walker when *48 sign, general a traffic control rather than
the focus is on uncertainty visibility of at an intersection. The whether visibility vegetation general trimming not increases is object specific present question on a when the focuses Accordingly, explicit stop sign. based on the such as the including statutes, above, the the directives discussed manual, law, and the case we decline to extend Walker present to the facts.33 Dodge County's argument
¶ second is that it 61. liability Brown, because, cannot under is be liable Leroy. Dodge limited to the Frankes and the Town of County escapes it does contends that it because property either the on which the tree is not maintain right-of-way stop sign the located, or the where disagree Dodge County's placed. Again, with inter- we pretation precedent. Brown, In of this court's this court gave city authority city concluded that ordinances property, to the dead tree on the landowner's remove way power and in limited the of the landowner to no property. remove the dead tree on his or her 199 Wis. at Applied principles here, 591. enunciated Brown Dodge County require that we conclude that cannot failing escape request trim, or to others to trim, above, tree branches. As we discussed Transportation Department and the Manual statutes give Dodge County authority to—and in fact not We note that our decision here does address whether regulations, § Wis. Stat. 349.065 and the related statutes and themselves, "provide liability municipali a basis for the civil Plus, injured present Physicians ties to motorists on the facts." 35 n.11. Our decision here is to the App 2001 WI .limited us, regulations only facts before and relies on those statutes duty determining municipality's for the to main purpose sign. stop tain the visibility County Dodge
require maintain —that taking encompasses duty sign. specifically stop This trimming example, "necessary trees, action," for stop face of the not obscure the that trees do assure interpreta- reject Dodge County's Accordingly, sign. we facts. as limited to its tion of Brown County argues Finally, Dodge under 86.03(3) (4), prohibited § from it is Wis. Stat. argues Dodge County trimming tree branches. trimming prohibited because the the tree from it was *49 right-of-way, and the most it not its tree was within offending request to trim the others could do was language County Dodge Specifically, relies on branches. 86.03(3) (4) stating, § or be cut "trees ... shall in abutting occupant only by of the the owner or removed authority having the control of land or the appeals' highway." agree discussion the court We with reject argument similarly argument, for that of this § above, 349.065 First, as discussed reasons. several Dodge require regulations statutes and and related sign, maintaining stop to County, in the course of visibility "necessary of the to assure action" take points sign. stop Furthermore, as Smith 83.015(2)(a) County pri- Dodge § to "enter allows out, employees weeds and to remove their lands with vate County power- Dodge Accordingly, not was ...." brush offending branches, being to trim the less in request Leroy able the Town Frankes or of the the assistance trimming knew, it or should the branches visibility stop obstructing known, were have County Dodge sign. therefore, conclude that We, does escape to trim its failure not based offending nuisance. abate branches —to Leroy C. Town of Finally,
¶ 63. determine we whether the Town of Leroy should held be liable its failure to trim the obstructing stop sign. Again, branches the view of the relationship we first note the between the Town of Leroy, stop sign. partially tree, and the The tree is Leroy's highway right-of-way within the Town of Ledge April year, Leroy In Road. of each Town of personnel inspect stop signs the roads to assure are in good apparently inspect condition, but do not for ob- stop signs. again morning struction of We note that the Leroy representative after the accident a Town of cutting offending assisted Donald Franke branches. also note We that at the time of the accident Leroy Ermanelda Franke was the Town of Assessor and neighbor, Schraufnagel, her Linus was Town Chair- man.34 Leroy argues Town of it is not failing
liable for to abate the nuisance because (1) duty under the Wisconsin Statutes the sole (2) stop sign Dodge County, maintain the lies with Leroy duty the Town of does not have common law stop sign. maintain regard
¶ 65. issue, With to the first *50 we acknowl- edge Dodge County duty stop that has a to maintain the public policy We note that considerations preclude would liability Schraufnagel, individual of Linus the Frankes' neighbor, for his failure to the public Although abate nuisance. Schraufnagel likely had actual or constructive notice of the condition, holding hazardous him liable cause would to enter a just field where there is no stopping point. sensible or Stores, Inc., 250, 265, See Miller v. Wal-Mart 219 Wis. 2d (1998). N.W.2d 233 sign. is an However, we decline to conclude that this duty Leroy relieves the Town of of its exclusive that § responsibilities. 81.01, the Town Under of Wis. Stat. supervision high- Leroy care and of all "shall have the "[e]nter ways any private town," in the and shall lands agents purposes employees and for the of with their removing 81.01(10). § . . . We fur- weeds and brush ." § grants private right recognize of ther that 81.15 damages against city village town, to recover action any "insufficiency repairs or want of due to the Leroy's liability highway is not ...." the Town of While § directly 81.15, statute, on a claim under this based previously with the other statutes dis- combination to that there is no cussed, leads us conclude Leroy relieving policy rationale for the Town of right- present in for a hazardous condition its of-way. Leroy argues Second, that it is the Town here it a common law
not liable because did not have duty stop sign. to maintain the We first note that this argument erroneously scope restricts the of this case to duty sign ignores Leroy's stop to the Town of right-of-way ob- trim the tree branches located its acknowledge structing visibility stop sign. aof While we Leroy a common law the Town of does not have duty stop signs placed and maintained to maintain statutory Dodge County, argument ignores this charging provisions above, it with "the care discussed Although highways supervision of all in the town." § phrase, "except as other- Stat. 81.01 includes the Wis. phrase provided," decline to wise we construe governmental entity if also has a mean that another sign, Leroy duty stop to maintain a Town duty highways. Rather, its we relieved of its maintain *51 governmental duty, conclude that both units had a neither of which was exclusive of the other. Based on statutory provisions requiring Leroy the Town highways, including rights-of-way, maintain its its we duty conclude had a it here to trim the tree it knew, known, branches that present or should have were right-of-way, obstructing in its and which were stop sign. Accordingly, the view of a we affirm the appeals regarding conclusion of the court of the Town of Leroy's duty public to abate the nuisance. summary, appeals' In we affirm the court of public that,
decision if the nuisance is found to abe escape cause of the accident, none of the can defendants liability maintaining public public a nuisance due to policy regula- statutes, considerations. Based on the public policy tions, law, case and concerns, we conclude Dodge defendants, that each of the Frankes, County, Leroy, relationship Town had a with respect stop sign making to either the or the tree, each individually responsible trimming offending abating public nuisance. branches —
IX. CONCLUSION ¶ 68. We have Frankes, concluded that Leroy, Dodge County Town of are all if liable, established, causation is a as matter of law for main- taining public consisting nuisance, of tree branches obstructing stop sign highway the view of a at a intersection. have We defined a nuisance as activity substantially unduly condition or which public place interferes with use of a or with the community. activities of an entire Based on the frame- attempted clarify Brown, work we have relationship negligence between nuisance. Specifically, we have noted that a nuisance can negligent or conduct and result from either intentional *52 liability maintaining public requires for a nuisance public nuisance, either or con- existence of the actual public nuisance, and a determi- structive notice public a nation that the failure to abate the nuisance is injuries. plaintiffs cause of the We have concluded comparing apportioning respon- purposes for the and determining among sibility and for contribution cul- pable parties, when all of the elements for for affirmatively maintaining public a nuisance have been proven, public a defendant's failure to abate a analogous negligence per to se. We have further is negligence, to for concluded that similar ity maintaining liabil- nuisance can be limited public policy considerations. Applying we here, the Brown framework
have concluded that the hazardous condition—the tree obstructing stop sign— the view of a branches law; constituted a nuisance as a matter of there genuine regard. no of material fact in that is issue genu- Furthermore, have concluded that there is no we summary judgment precluding ine issue of material fact on the issue of notice. The hazard existed for at least accident, which two to three months before the impute time to either actual or constructive sufficient Dodge Leroy Frankes, notice to Town County. Regarding of whether the failure to issue plaintiffs abate the nuisance was cause injuries, disputed however, have concluded that we preclude now, inferences a determination so reasonable summary judgment appropriate grant that it is not to Diane on that issue. The record contains evidence that five beers before the Smith had consumed four to jury appropriate fact accident. The is therefore the of the accident finder determine a cause or causes apportion liability accordingly. If causation is es- pur- trial, tablished at however, we conclude that for poses comparing apportioning responsibility determining among the accident and for contribution culpable parties, each defendant's failure to abate the pubhc analogous neghgence per nuisance is se. Finally, pubhc policy
¶ 70. we have reviewed the arguments defendant, of each and have concluded that Dodge County, Leroy Frankes, and the Town of all responsibility pubhc had policy to abate the nuisance. Pubhc preclude liability do not
considerations here for any of the defendants.
By appeals the Court.—The decision of the court of is affirmed.
¶ participate. WILCOX, J., 71. JON E did not (concur- ¶ 72. BRADLEY, ANN WALSH J. ring). majority attempts clarify relationship pubhc neghgence. attempt, between nuisance and Its although thorough, ultimately proves unsuccessful. It majority acknowledge fails because the refuses to what is interspersed throughout opinion: allegations its pubhc neghgent nuisance based on conduct remain es- sentially neghgence. an action for why majority goes
¶ I 73. do not understand neghgence unnecessary to such trouble to insist that recognizing to this case. Instead of case is grounded neghgence, majority engages injudicial in gymnastics trying pubhc something to fit nuisance into "analogous neghgence per Majority op. it labels se." at majority ¶ opinion 20. When all is said done, and up looking neghgence analysis anyway. ends like a describing pubhc ¶ In 74. the intersection of nui- neghgence, majority opinion sance and cites ele- ments and rules that lead me to conclude that this essentially public of action is an action cause nuisance majority opinion negligence. acknowl- Indeed, for following: edges each of the maintaining public
¶ nui- First, 75. negligent on conduct. can be based sance comparing principles ¶ Second, the same 76. public negligence apply apportioning also to nuisance.
¶ causation, which are Third, both notice 77. required negligence generally actions, are hallmarks public in nuisance actions. negligence
¶ cases where an Fourth, 78. as public omission, a maintained for an action can be for failure to abate action is maintained omission). (which is an negligence again cases,
¶ Fifth, as policy can limit considerations nuisance cases.1 throughout sprinkled top this, 80. On of all sug
majority opinion statements are numerous other gesting in this case is nuisance action that the negligence: ultimately can be "nuisance an action for majority grounded negligent conduct," intentional City (citing Milwaukee, op. Raisanen v. at (1967)); "[c]ontribu- 504, 514, 151 2d N.W.2d Wis. damages tory negligence in an action for is a defense upon negligence," grounded occasioned a nuisance *54 1 the that authority proposition no for majority cites liability negligence also limit policy factors that the It that liability appears nuisance. to limit apply 256, 2d 301 v. 100 Wis. majority relying Bignell, on Walker Milwaukee, 74 Wis. 2d (1981), Coffey City v. 447 N.W.2d majority op. 526, (1976), proposition. for the See 247 N.W.2d132 negligence, However, only involved Coffey at 44. Walker ¶ nuisance. not
143 majority op. (quoting Realty ¶at 31 Schiro v. Oriental (1956)); Co., 537, 547, 272 Wis. 76 N.W.2d355 "where negligence contributory is the basis of negligence principles apply,"majority op. (citing ¶at 31 City Niagara Falls, McFarlane v. 160 391, N.E. 392 (N.Y.1928)). majority opinion ¶ Also, 81. discusses each of the defendant's in terms of its acts or omis- my reinforcing sions, further conclusion that this case grounded negligence. is majority As to the Frankes, responsibility
determines, "their is based solely on their failure to trim the branches of their Majority op. majority ¶ tree." Likewise, at 51. states "Dodge County escape liability does not based on offending Majority op. its failure to trim the branches." Finally, majority ¶at 62. addresses "whether the Leroy Town of should held be liable for its failure to concluding Majority trim the branches," that it should. op. ¶¶ 63, at 66. interspersing opinion In addition to its with negligence analysis, majority
what reads like a heavily upon Ry. relies Brown v. Milwaukee Terminal Co., reargument, 575, Wis. N.W. (1929). recog Wis. Brown, 227 N.W.385 however, nizes that nuisance cases like the one before us are essentially grounded ordinary in the failure to exercise negligence. care, is, explained: 83. The Brown court
In such cases danger results, where not from the planting tree, through but subsequent changes for which the defendant is not responsible, it is essen- tial to that it be shown eithеr that the defen- danger dant knew of the incident to the maintenance of the tree or that such condition had existed for such length that, care, time ordinary the exercise *55 danger ought the and to defendant to have discovered injuries by it sustained have removed before were plaintiff. added). (emphasis Brown, Thus, at 590 even
199 Wis. majority case that links which the terms "seminal majority negligence concepts," op. public nuisance and explains negligence ¶at is "essential" to liabil- ity here. majority opinion like a reads 84. reason analysis explained by leading
negligence authori- is also recognizes example, three ties on tort law. For Dobbs grounds of action for dam- for a nuisance cause ages explains little more than that nuisance is all three: label that covers personal injury can of nuisance cases
"[T]alk damages confusing plaintiff when the claims rather be be liable for abatement. If the defendant should than intentionally it is he caused injury, because has abnormally dangerous an injury, on carried personal protecting at activity, a statute aimed violated To the case as one negligent. or was label plaintiff, of decision-making clarity to the nothing adds nuisance usually a public assert policy. Plaintiffs reasons, injury strategic for ex- causing personal contributory own to avoid the effect their ample, case, leading But as said "when- fault. Cardozo may origin negligence, its in" one ever a nuisance has contributory fault consequence his own not avert affixing... of a by the label nuisance." (2001) § p. Dobbs, Torts 1337-38 Dan B. Law omitted). added) (footnotes (emphasis (Second) Similarly, of Torts Restatement grounds recognizes for nuisance the same three negligent allegations conduct of nuisance based negligence: essentially action remain an Many nuisances, private, both are not intended the defendant and do not any arise from abnormally dangerous activity, but are the result of *56 mere negligence failing to take proper precautiоns to prevent the right. invasion of the When this is the case contributory negligence of the plaintiff is available fully as a defense as and under the same rules and conditions as in any the case of other action founded upon negligence. true, This is for example, when the defendant building allows his to fall into disrepair through failure to make inspection reasonable of it and its dangerous condition becomes to travelers on the highway or to the owner of adjoining land. In such a case the conduct is not removed defendant's from ordinary negligence it because results in nui- field of sance. The action remains essentially negligence one for and the contributory negligence plaintiff is a defense. (Second) (1979)
Restatement § of Torts 840B cmt. d added). (emphasis 86. I am persuaded
¶
by these learned authorities,
I
am also persuaded by the adage: "[w]hen I see a
bird that walks like a duck and swims like a duck and
quacks
duck,
like a
I call that bird a duck." City Newof
Clinton,
York v.
(D.D.C.
985 F.
Supp.
1998),
aff'd,
York,
Clinton v. City New
(1998).
¶ that majority on summary none judgment precluded defendant from liability. However, I disagree with the majority plaintiff should be granted partial summary judgment based on a public nuisance cause of action as the majority defines it.2 Wisconsin Stat. ch. "Nuisances," entitled contains provisions
various pertaining public nuisances, to including statute authorizing causes action nuisance. Wis. majority's disagree ¶ addition, I with In 88. "analogous negli- public nuisance is conclusion Majority op. gence per on the 20. Based se." at analysis majority opin- negligence interspersed in the secondary case, and the authorities Brown ion, the essentially an remains this case cited, I conclude that majority negligence. not, I Because does action respectfully concur. S. that SHIRLEY I am authorized state joins JUSTICE, concur- this
ABRAHAMSON, CHIEF rence. question power government Thus, § I do not
Stat. 823.01. I public nuisance. bring actions to abate a or others to entities *57 nui- however, majority's conception do, question the damages. sance in this action for