Totsky v. Riteway Bus Service, Inc.

Jeffrey Jeffrey Totsky Gustave a/k/a G. Totsky, Totsky, Plaintiffs-Respondents-Petitioners, Kristine Riteway Sharon Y. Williams and Service, Inc., Bus Corpora Co., National Continental Insurance an Ohio Progressive part Group, tion, a Insurance Defendants-Appellants, Physicians a Wis Corp., Wisconsin Service Insurance Corporation Quad/Med consin Claims, Quad/Graphics, Inc., Defendants, a California Company, Maxicare Health Insurance Corporation, Defendant-Respondent, City of Milwaukee and State Farm Mutual Respondents. Ins.,

Automobile Supreme Court 12, argument No. 97-0530. Oral October 1999. Decided March 2000 WI 29 (Also 637.) reported in 607 N.W.2d plaintiffs-respondents-petitioners there For Angermeier, Rogers by Mark J. C. briefs Robert were argu- Rogers, Angermeier Milwaukee, and oral & by Rogers. ment Mark J. by defendants-appellants there were briefs

For the Swietlik, S.C., Lewis & L. Arrowood and Vicki Kasdorf Banks, Jr., Y. McGowan and Yolanda and Emile H. Milwaukee, Associates, LLC, all of Emile Banks & by argument Banks, Emile H. Jr. oral City respondent, Milwaukee, there was For attorney, Tangen, city with Ellen H. assistant a brief city attorney. Langley, Grant F. whom on the brief was Jeffrey CROOKS, Tot- PATRICK J. G. 1. N. Totsky, petitioners, sky seek review of and Kristine Totsky appeals, published decision of the court of a Riteway 889, 894, Co., 2d Serv. Wis. Bus (Ct. 1998), App. reversed a Milwau- which N.W.2d 188 judgment judgment. County Court kee Circuit Riteway school bus verdict that found vacated through stop sign, going negligent a in a driver was 346.46(1)(1991-92).1 jury § of Wis. Stat. violation emergency set forth doctrine as on the was instructed accepted apparently the 1105A. It in Wis JI —Civil finding emergency in the in no doctrine Statutes are to to the Wisconsin subsequent All references noted. the 1991-92 text unless otherwise driver, Williams, actions of the Sharon Y. skid- bus who through stop sign patch ded the the hit a when bus skidding through stop sign, ice. In the Williams' bus Jeffrey Totsky's collided with vehicle. After the negligent, court, found was not the circuit Williams presiding, Honorable Michael W. Skwierawski entered judgment Totskys a favor of the on their renewed conditionally granted motion for directed verdict and a new trial. appeals holding reversed, 2. The court of emergency apply negligence per [in

"the doctrine can a safety by action] se if a ofthe violation statute is caused management through a loss of and control no fault of presuming requirements driver, the other invoking Totsky, doctrine are met." appeals 2d at Wis. 903. The court of also held that supported "application credible evidence emergency doctrine in this case." Id. at 904. We affirm appeals' the court of decision. The 346.46(1) applies § to a violation of Wis. Stat. under the 346.46(1) case, facts of this a because violation of management concerned with an issue of and control. subrogated parties We further hold that two of the city case, this of Milwaukee and Maxicare Health Corporation, required sepa- Insurance were not file petition preserve subrogated rate for review to their appeal, they stipulated interests on because to waive rights participate their at trial and to be bound judgment. However, State Farm Mutual Automo- Insurance, bile which did not enter into such stipulation, required petition to file an individual preserve appeal subrogated for review on its inter- separate Totskys' est, which is from the claim.

HH ¶ 3. This case revolves around an accident where through a bus skidded an intersection on ice and col- just lided with another car. The accident occurred February 10, 1993, before 7:00 a.m. on at the intersec- Morgan city tion of Avenue and 80th Street in the Morgan roadway Milwaukee. Avenue is an arterial any stop signs does not contain where it intersects 80th stop sign A Street. controls the northbound lane of 80th Jeffrey Totsky (Totsky) driving Street. was to work heading Morgan east on time, Avenue. At that same (Williams) driving Riteway Sharon Williams school bus north on 80th Street. began day

¶ 4. Williams work that at 6:00 a.m. leaving yard, general Before the bus she checked the including bus, condition of the brakes, and was working properly. satisfied that the bus was Williams damp, noticed that the roads looked but she knew some ice existed on the roads as well. She her was on pick up initially first route to children when she skid- couple ded. Her times, time, bus skidded a but each apparently she could see the ice on the road before she encountered the skid. The first encounter on the ice approximately caused the to slide bus to the side one or similarly two feet. The second skid was minimal. Totsky ¶ 5. noticed that the road looked wet as he work, left for he but did not skid the accident or before slippery encounter conditions. He also testified at the slippery trial that the road did not look near where the stopped just accident; bus after the it looked wet. stop sign

¶ 6. Williams saw the for northbound approached traffic as she the intersection of 80th Morgan approxi- Street and Avenue. When she was mately stop sign, began apply 100 feet from the she her brakes. She estimated at trial that she was travel- ling per began 12-14 at about miles hour2 when she to apply brakes, wet, the and that the road looked not icy.3 began The to skid Williams As bus when braked. pumped skidded, the she the and bus brakes tried to However, turn the wheel of the bus into the skid. she stop Riteway's Krenz, was to the unable bus. Robert expert, began skid, estimated that when Williams to travelling per hour, the 16-23 miles bus was between Totsky speed and struck vehicle at a between 11-16 per miles hour. completely through

¶ 7. The bus skidded parking Totsky and lane into intersection. saw the skidding through bus the intersection and accelerated attempt in an The avoid a collision. bus struck Tot- sky's right denting right corner, vehicle on the rear Upon impact, Totsky's rear fender. vehicle went into a spin turning only stopping clockwise, when it struck a signpost Totsky Krenz broadside. estimated that was driving per at miles 8-12 hour when his vehicle hit the signpost. Totsky

¶ car, 8. When the hit bus was passenger knocked out of the shoulder harness into the lap hips legs. seat, but the belt still secured his and He attempted up spin, to sit and counter-steer out of the signpost, but as the vehicle hit the curb and his head body Totsky slammed into the left front door. immediately pain back, almost felt in his for which he painkillers later took and muscle relaxants. He ulti- mately completed therapy, three months of was treated eight doctors, several and missed months of work.

2During deposition, Williams testified she was driv (R. 89:12.) ing per about 10-15 miles hour. at apparently Williams testified at trial that before the acci dent, any patches she did skid on of the road that merely looked wet. prior picked up

¶ children had two4 9. Williams nor the children accident, but neither Williams to the injured during the collision. Riteway. Totskys trial, Before the sued 10. (Maxi- Corporation Insurance both Maxicare Health care) right city their of Milwaukee and the waived participate However, Farm Mutual Auto- at trial. State (State Farm) right did not waive its mobile Insurance participate at trial. 1996, the case was tried to In November Totskys jury. evidence, At the close moved negligence. on the issue Williams' a directed verdict per- advisement, under The court took the motion go jury. mitted the case to to the Among given jury the instructions were Jury Management Instructions Wisconsin Civil 1105— Emergency Doctrine, Control, and 1105A— Skidding, ques- The first and 1055—Lookout. 1280— special Sharon Williams tion of negligent verdict asked: "Was the February operation her on in the of vehicle jury jury responded The "no." also The 1993?" Jeffrey question: responded "Was G. "no" to the third Totsky negligent operation his vehicle on Feb- the of thought following ruary jury the that 10, 1993?" The compensate Totsky money reasonably sums of would past hospital damages: and medical $37,000 for his for hospital expenses; and $60,000 future medical for earnings; past expenses; $100,000 $20,324 loss of for past earning capacity; $50,000 and for loss of future disability. jury suffering, pain, fur- and future reasonably $10,000 would ther determined that many chil discrepancy as to how seems to be some There two, report there were dren on the bus. The accident states were three. that there were Williams testified at trial but compensate Totsky Kristine for the loss of consortium sustained her.

¶ 13. Since the returned verdict that Totsky negligent, neither Williams nor was the Tot- skys They renewed motion their for a directed verdict. also moved in the alternative for new trial justice interest of and claimed that verdict was against weight Judge of the evidence. Skwierawski granted both motions. granted

¶ 14. The court the motion for a directed negligent per verdict for several reasons. Williams safety se, court since she found, violated a statute. emergency Moreover, the court found that the doctrine could not excuse Williams' as this case did solely present management issue an and control. Finally, negligent she was as a matter law because speed produced emergency her excessive that she encountered, therefore, apply. did not conditionally granted 15. The circuit court also appeal,

the motion trial for a new in the event on judgment the court's would be reversed or vacated. appeals ¶ 16. The court reversed both of the rulings. Totsky, circuit court's 220 Wis. 2d at 894. The apply doctrine can to the violation of a safety negligence per statute, which results in se, appeals support, of court decided. Id. at For it looked to La v. General Am., Vallie Ins. Co. 17 Wis. of (1962), 522, 2d 117 703 N.W.2d in which this court applied emergency the doctrine ato violation of a safety appeals explained statute. The court of that La proposition Vallie stands for if the that a driver's loss of management safety and control causes a violation of a emergency apply, assuming statute, doctrine can emergency prerequisites doctrine also for other Totsky, apply. 220 Wis. 2d at 903. appeals distinguished

¶ also 17. The court of Gibson, 2d 280 N.W.2d 186 Wis. Leckwee (1979), rely upon greatly. petitioners That a case the emergency arguably precludes the use doc- case of Totsky, safety in cases of a statute violation. trine inapposite, was the court of 2d at 903 Leckwee Wis. n.3. recognized, appeals Leckwee, in the court did because issue, since it not address the even (citing at the circuit court level. Id. was not raised 289). at Leckwee, 90 2dWis. appeals that court concluded here 18. The of supports application of the emer- evidence

credible gency, Totsky, alleged 220 Wis. 2d at 904. The doctrine. management negligence at related to and control. Id. supported also the other two 906. Credible evidence requirements application doc- to act the time in which Williams needed was trine: enough preclude action sufficient to avoid the "short negligence causing the accident," was free of in and she icy patch see because she unable to accident was Id. that made the bus skid. appeals court also addressed the 19. The The circuit as a matter of law. court

issue negligent law had a matter of since found Williams as going fact that she "she too fast and view the was morning danger ice that that existed knew there was finding roadways. . . ." Id. at 905. This was on the appeals stated, a reasonable error, the court of because according evidence, found, to credible could have per driving between 10 and 16 miles was Williams patch the skid. hour she hit ice that caused when speed therefore, she and, not was Id. Her excessive negligent of law. Id. as a matter Totskys petitioned ¶ 20. The this court review appeals' subrogated of court decision. The three parties, city Milwaukee, Maxicare, of and State join petition. Farm, subrogees Further, did not none of the timely petition filed a of their own. The Respondents a therefore filed motion to dismiss the subrogees §808.10(1997-98) parties as under Wis. Stat. (Rule) §

and Wis. Stat. 809.62(1997-98), subrogees claiming that the waived right subrogees their ato review of the claims. The did respond Respondents' Finally, to the motion. subrogees only opposition filed briefs the motion they to dismiss when were warned that the motion summarily granted would be absent failure to respond.5

p-H )—I ¶ 21. The first issue we address is whether the apply doctrine can to a violation of Wis. 346.46(1), statutory requiring § Stat. section vehi stop stop signs. Interpretation cles to at of Wis. Stat. 346.46(1) as it relates to the presents question Hill, Burnett law. 207 Wis. 2d (1997)(statingthat statutory 110, 118, 557 N.W.2d 800 law). interpretation question is a Questions of law 5The from Supreme letter the Officeof the Court Clerk was sent subrogees' 29, 1999, to the attorneys April on specifi cally stated: City Milwaukee, A motion to dismiss the State Farm Mutual Company Automobile Insurance and Maxicare Health Insurance Corporation responded by from this review has been filed but not any response of the named entities. Failure file a to this motion May 10, Monday, pending being 1999 will result in this motion summarily granted. independently deference a cir- without to reviewed

are Id. cuit court's decision. emergency doctrine excuses an individ- 22. The negligence. Turowski, 2d v. 49 Wis. See

ual from Seif Hirth, Geis 23, See also v. 15, 181 N.W.2d 388 (1966). Three 580, 146 N.W.2d 459 588, 2d 32 Wis. emergency requirements must met for the be apply: to the

First, seeking the benefits of emer- party negligence must be free from which gency doctrine emergency. of the Sec- to the creation contributed ond, in which is required the time element action enough preclude short to deliberate must be Third, the element of choice of action. intelligent into concern man- being inquired must negligence agement emergency doctrine and control before can apply.

Gage 354 661, 664, v. 36 2d 154 N.W.2d Seal, Wis. (1967)(quoting 586, 146 Hirth, 580, 32 2d Geis v. Wis. (1966)). 459 N.W.2d emergency underlying 23. The rationale emergency person an that a faced with

doctrine "is help is not not create or create conduct did which his guilty chose, failed to he or of in the methods if he is com- choose, pelled the threatened disaster to avoid instantly Seif, reflection." without time for to act Papacosta, (citing Papacosta 2 Wis. 23 2d at Wis. (1957)). way: another 175, Stated 2d 85 N.W.2d 790 upon "[t]he application rule rests elapses psychological between fact that the time which danger impact is too short and the the creation particular allow an intelli- under the circumstances gent response or deliberate action choice of to the danger. Gage, realization ..." 36 Wis. 2d at 664 (quoting v. Thomas, 467, Cook 25 Wis. 2d (1964)). N.W.2d 299 discussing why

¶ 24. Before doc apply trine can to a 346.46, violation Wis. Stat. we stop sign safety first note that statute is a statute, negligence per the violation of which constitutes se. "A safety legislative designed statute is a enactment protect persons specified particular class of from a type Willis, of harm." Betchkal v. 2d 177, 184, Wis. (1985)(quoting Leahy 378 684 N.W.2d v. Kenosha Hospital, Memorial 2d 441, 449, 118 Wis. 348 N.W.2d (Ct. 1984)). App. § 607 safety Wisconsin Stat. 346.46 is a Stop Stop statute. See Wis JI —Civil at 1325— (Alternate)(the Signs, Stop Stop Signs and at 1325A— headings stop sign of both instructions refer to the statute). safety statute as a safety

¶ 25. The violation of this statute consti- negligence per Negligence per tutes se. se arises from safety requirements the violation of a statute if three 1) safety designed prevent are met: the was statute 2) person injured pro- the inflicted, harm the in was a 3) legislature expressed tected class, has its statutory intent that the section serve as a basis for the imposition liability. civil Betchkal, of 127 Wis. 2d at 184 (citing Bignell, Walker 100 Wis. 256, 268-69, 2d 301 (1981)). 447, 454, N.W.2d First, Wis. Stat. 346.36(1) designed § prevent resulting was collisions stop yield from vehicles that do to traffic hav- ing right-of-way. Second, the statute was created to protect highway merely regulate users, not the flow protected of traffic. The is class "vehicles which have upon approaching a the intersection or are entered by stop sign highway an official which is not controlled 346.46(1). Totsky signal." § Stat. or Wis. traffic protected persons because his of to be within class highway did that not contain on an arterial vehicle was sign. legislature's stop Finally, intent that liability by implied § as basis civil 346.46 serve language Walker, See 100 Wis. of the statute itself. may sup (stating "requisite intent be 2d that at necessary language implication plied from the statute.") (recogniz Leahy, Wis. 2d at 450 See also liability may impose ing legislative intent to civil that statute). directly by implication in a Sec or be stated 346.46(l)'s expression language a clear "is such tion safety highway users, committed so concern for the plainly responsibility" operators of vehi of the to the signs, approaching stop that we conclude cles liability legislature impose civil on those intended to Walker, 100 statute. who violate the individuals Cf. 2d at Wis. appeals agree that the the court of 26. We with 346.46(1) negli- constitutes of Wis. Stat.

violation gence per can excused se, and that such violation be through application doctrine. We analysis agree appeals' for several court of with the reasons. correctly appeals relied First, court of proposition

upon the emer- that when La Vallie for the safety gency applies a of a it excuses violation doctrine finding negligence. precluding In La a of statute, thus car car into another Vallie, the defendant's skidded highway, patch hit snow and ice on but after it a of negligence." jury plaintiff "[t]he 17 of Wis. absolved "jury properly was court found that the 2d at 525. This 389 though doctrine," instructed on the even alleged safety pertained defendant's violations to two holding prop- Id. at 527. In statutes. that the was erly emergency doctrine, instructed on the we stated alleged any "the that doctrine would excuse 346.34(1) [proscribing change violation of sec. a of roadway], upon change direct course a since the course direct occurred at a time when the La car Vallie through out of control no fault driver." Id. only This statement not demonstrates that the emer- may gency apply negligence per a case, se management but also that and control was at issue La Vallie. Totskys argue

¶ 28. The that La Vallie does not Totskys' arguments control this issue. We find the unpersuasive. Totskys attempt distinguish La Vallie on the basis that La Vallie dealt with the issue position highway, they merely 15)(cit- on the which contend (Pet. negligence. an creates inference of Br. at 591). ing argue they Geis, contrast, 32 Wis. 2d at In (Pet. duty stop stop sign at a Br. absolute. 1325). 15)(citing Totskys at However, Wis JI —Civil language they rely upon. misconstrue the in Geis that party's Geis, In 591, 32 2d at Wis. we stated that a "position wrong on the side theof road created an infer ence of unless it was shown that this was beyond Kempfer her control." See Bois, also v. Wis. (1949), 312, 314, 38 N.W.2d and Zeinemann Gas ser, 238, Wis. 29 N.W.2d 49 this While negligence may exactly equate inference of with negligence per prima se, the inference establishes negligence, facie case of which cannot be rebutted with showing beyond party's out a of circumstances emergency. control; in words, other an As such, La Vallie case. A dis- is in this valid persuasive authority of and negligence a so-called inference tinction between cannot drawn under these se be negligence per circumstances.6 Second, we the court of agree appeals with (Second) of Torts permits

that the Restatement doctrine, even a though the emergency of application that this recognize is involved. we safety statute While we find statutory interpretation, is a matter of issue (Second) 288A persuasive the Restatement of Torts § generally it that a because demonstrates se. Restatement negligence per excuse to accepted (1965) (Second) 288A, Violations, of Excused Torts § states:

(1) An enactment legislative excused violation of a regulation negligence.. an is not or administrative 6 law draw a appears It case does not that earlier Wisconsin negligence negli an of and clear distinction between inference Oregon Supreme appears to use the gence per se. The Court discussing negligence per se negligence in presumption term of However, Oregon treatment of Supreme Court’s situations. situations, this court's treatment presumption in such and con negligence appears situations of an inference of similar 312, 314, 38 Bois, N.W.2d Compare Kempfer v. 255 Wis. sistent. 243, (1949), Gasser, 29 251 Wis. Zeinemann 121, 123 (1947), Wingard, 546 P.2d with Weitzel v. N.W.2d (Or. motor statute 1976)(stating "the of a vehicle that violation pro if "party a presumption negligence," but creates question raises the court determines duces evidence which reasonably, despite violation of party acted fact whether for the statute, negligence is one question party's then law, Oregon thorough jury.") For a discussion on Actions, Torts, Forell, Statutory Duty Statutory to Caroline refer Difference, 77 Or. L. Rev. Negligence Se: What's the Per (2) Unless the enactment or regulation is con- strued not to permit excuse, such its violation is excused when

(a) the violation is reasonable because of the actor's incapacity;

(b) he neither nor knows should know of the occasion for compliance;

(c) he is unable after reasonable diligence or care to comply;

(d) he is by confronted an emergency not due misconduct; his own (e) compliance would greater involve a risk of harm to the actor or to others. (Second) §

Restatement of Torts 288A Section applies 288A safety to actions-where there is a violation of a specifically "legisla-

statute, because it refers to (Second) 288A(1). tive enactment." § Restatement explains person's Comment b if a action is person negligent place: excused, the was not in the first "[i]n many of the situations in which the conduct of the simply actor is excused, such conduct is not a violation regulation, any of the pur- statute, ordinance, or (Second) 288A(1) pose." § Restatement of Torts cmt. b. Harper, Gray, See also James & Torts, Law of (2d 1986) § (stating 17.6 at 641 ed. that if an excuse applies safety ato violation of a and, statute thus, negligence per otherwise would be se, "it means that statutory negligence per violation of a standard is se in only a tending civil case in the absence of evidence recognize.") establish some excuse that the court will (d) particular, ¶ 30. In the Comment on Clause accepts emergency the use of the doctrine. It addresses emergency applies how the to a violation a resulting negligence per statute in se. It states that "[a]s negligence..., in other cases of the violation of an regulation ordinarily enactment or will be excused by is confronted an which emergency when the actor Restate- her] his own misconduct." [or not caused (d) (1965). (Second) cmt. on 288A clause Torts ment acknowledgment express find in this comment an We in regard doctrine's use to violation per se. resulting negligence of a statute authorities in tort Finally, leading other doc recognize applicability law se 7 Prosser a statute involving per trine to no note that violation of statute which and Keeton Prosser & is strict permitted really liability.8 excuse is 1984). (5th Torts, Law Keeton, The 36 at 227 ed. § of acknowledge approach might be that another that We doctrine, a tradi and to use is to eliminate the taken in a assess negligence inquiry, which would tional breach, cause, Harper, according duty, and harm. negligence 1986) (2d Torts, 17.6, Gray, ed. & The Law 619-20 § James of of such a jurisdictions a number (stating "[i]n that substantial weighed by negligence is held to be evidence of to be violation approach, significant jury.") Under the alternate the most It seem to involve breach and causation. inquiries would under in this case would the same appears that the result be concurring disagree approach, however. We with either negligence suggests of the doctrines of opinion that elimination sig a per emergency. approach an would abandon Such se sufficient body precedent in Wisconsin without nificant of justification. regard crimi of a appear and Keeton violation Prosser liability if no resulting negligence per se in as strict nal statute permitted: excuse entirely possible imposing more criminal no It is that a statute may duty, regarded imposing as a small fine be an absolute

than excuse, recognized in a there is no even for the violation which statutory large damages. this is a But matter tort action Moreover, may interpretation. fit to a strict a court see decide that liability imposed in a situation in tort should on defendant be public legislature interest to has deemed it to be where the Harper, Gray recognize James, and the meritorious objections negligence per to the "Draconian" nature of Harper, Gray, § se. James & The Torts, 17.6, Law of (2d 1986). They point jurisdic ed. out that most temper negligence per by allowing tions se some emergency, consideration excuse, such as or lack of control. Id. at 637-38. While this case is not based on policy considerations, the observations these authori agree per ties make are valid. We se, unduly itself, is a draconian measure that can lead to particularly results, harsh unfair when a statute liability. does not even call for civil The doctrine balances the obvious intended benefits of the safety punish statutes, with the desire not to an indi safety vidual whose violation of a statute was due to no fault of his or her own.

¶ 32. Since we are faced with an issue of statu- tory interpretation, necessary it is for us to construe language interpret in Wis. Stat. 346.46. We impose liability by way imposition some kind of strict of a small fine. legislature, powers, may within its constitutional see fit to place injuries "upon measurably burden of those who can con- causes, upon trol their instead of those who are the main helpless regard." in that In may such a case the defendant become liable on the mere basis of his violation of the statute. No excuse is recognized, ignorance and neither proper reasonable nor all care liability. properly will avoid Such a statute falls under the head of liability, any strict negligence although rather than basis of the — infrequently continue, habit, courts not speak out of to of the viola- "negligence per

tion as se." Keeton, (5th Torts, 1984) Prosser & The Law 36 at § ed. (citation omitted). The criminal example analogous statute is to regulation the traffic situation at issue in this case. We wish to avoid, effect, in converting safety statute violation into strict liability by failing recognize any excuse. applicability language support the of the

statute's emergency following rea- as an excuse for the doctrine may though emergency apply even doctrine sons. The mandatory language such as uses "shall." the statute mandatory § 346.05, which also uses Wisconsin Stat. language, permit emergency the has been construed applicability. Geis, 32 2d at 591. doctrine's Wis. Although language the statute's exceptions. mandatory, already These it contains two exceptions that the is not immuta- two indicate statute Again, example. § as an In that we look to 346.05 ble. exceptions statute, have been listed. Even already several though exceptions in listed the stat- those were emergency permitted ute, the this court use Vallie, sum, In 2d at 527. doctrine. La 17 Wis. language supports Stat. 346.46 our conclusion of Wis. may emergency apply an as excuse. applicability now 34. We examine emergency emergency doc- doctrine in this case. The safety apply statute, to the violation of a trine can excusing negligence per se, be what otherwise would only required the three tests of but in situations where met. is the third are At issue this case negligence inquired into test: whether the element of Precisely management at issue is concerns and control. manage- must the concern to what extent apply. doctrine to ment and control management and control must be We hold that negligence inquiry, does have it involved but only In in a case.9 to be the standard of care at issue By comprise of care mean the duties that standards we negligence inquiry. Sometimes this court has characterized management duty separate from other duties. and control as a 71, e.g., Exchange, Ins. 62 Wis. 2d See Tombal Farmers emergency negli- other words, the doctrine can absolve gence management as to control, even if the total negligence inquiry involves more standards of care just management than and control.10LaVallie, 17 Wis. (stating safety 2d at 527 that if a violation of a statute management is caused a loss of and control, without part fault on the driver, then the apply). doctrine can important exactly First, it is to define what by "management Management

is meant and control." person's driving. and control relates to a manner of Schmit v. Sekach, 29 281, 289, Wis. 2d 139 N.W.2d 88 (1966). The instruction states that if a compelled instantly "driver is to act to avoid collision, negligent the driver is not if he or she makes such a ordinarily prudent choice of action or inaction as an person might placed position." make if in the same Wis Management A, JI —Civil Con- Emergency. pertaining The instruction trol — management explains "[a] and control further ordinary keep driver must exercise care to his or her proper management vehicle under and control so that danger appears, may stop when the driver vehicle, speed, change reduce proper course, or take other injury damage." means to avoid or Wis 1105, JI —Civil (1974). 214 N.W.2d 291 At other times this court has character- management ized part of, and control in, as or involved another duty. e.g., See Hey, 50, Simon v. Van de 269 Wis. 68 N.W.2d Respondents argue alternatively also that the Plain tiffs right verdict, waived their jury's contest the and that skidding instruction negligence. relieved Williams of (Resp. Br. 15-21.) at We decline to arguments address these they because dispositive are not in this case. Management

Management control, and and Control. per- that a action or inaction therefore, is the choice of regarding Schmit, 29 Wis. his or her vehicle. makes son 691, O'Brien, 2d v. 38 Wis. See also Edeler 2d at 289. (1968). 699, 158 N.W.2d 301 stop regard to a three duties in A driver has 36. yield stop, sign: to look, then and then must a driver Sailing right-of-way. Wallestad, v. that has the traffic (1966)(quoting 725 435, 441, 145 N.W.2d Wis. 2d 32 Grady, 55, 123 20 2d v. Wis. Schlueter 553 - (1963)). Management control is and 458 N.W.2d yielding. stopping and in the duties both involved Jury 1105, which the Instruction —Civil Wisconsin stopping proper specifically as a considered, refers to injury damage. This court has also or to avoid means applying vehicle, is to a which brakes determined that proper manage ability stop, part integral is to the to Hey, 50, 57, 68 N.W.2d de 269 Wis. ment. Simon Van stopping method which such, is a As 529 manage control a vehicle. and driver can similarly Management and control 37. additionally duty yield. Sailing dis- involved management control in and cussed the involvement yield. duty failed to case, defendant In that travelling yield sign yield on the hit a vehicle at a Sailing, highway. intersecting 2d at 32 Wis. arterial degree of control stated that This court 436-37. sign. stop yield sign Id. at required at a is less than at a By that control statement, the court indicated this duty yield. so, Even in the extent is involved to some proper ultimately for the that it was state court did management and con- on court not to instruct circuit sufficient did not reveal the "evidence trol since reaction time available for there to anbe issue of man- agement and control." Id. at 445. Management

¶ 38. involved, control is not duty however, in the of lookout. See Tombal v. Farmers Exchange, 64, 71, Ins. 2d Wis. N.W.2d (1974)(wherein the court stated that "Mrs. Tombal did negli- make an efficient lookout and that she was not gent speed and, as to further, that she was excused possible negligence management doctrine.") from as to and control by emergency though virtue of the Even obeying stop sign a includes more duties than those involving management emergency control, and the doc- apply trine can still to the duties that do involve management instance, and control. For in Tombal, this applied emergency management court the doctrine to speed, regard "[the] and control, but not lookout or statutory duty to entering to use caution when an inter- against yellow flashing light." section a traffic control Similarly, Id. Roth, in Lievrouw v. 157 Wis. 2d (1990), appeals 352-53, 459 N.W.2d 850 the court of emergency correctly found that doctrine was applied speed management in a case in which both and specifically and control were at issue. The court rejected argument speed the defendants' that because management was at issue in addition to control, and emergency apply doctrine could not at all. Id. at may In statement, 353. its "a driver fail to exercise ordinary respect speed manage- care with to both and implied though control," ment and the court that even may manage- additional duties case, be at issue in a if emergency involved, ment and control is doctrine apply management portion could to the and of control negligence inquiry. management Therefore, Id. if emergency and control case, is at issue in a doctrine may apply, if are at issue. Of even other duties also only apply can to the course, the doctrine portion negligence management and control (stating inquiry. "emer- 1105A that the Wis JI —Civil by only [a juror] gency is to be with rule considered juror's] [a respect as to consideration to control.") management and management is involved 39. Since control stop pertaining obeying ofthe duties

in at least two proper sign, on the it is for a be instructed requirements doctrine, if the other two application case, In are met. both of this requirements were satisfied. those negligently, First, did not Williams act causing emergency. speed thereby at which she approximately travelling skid, 16-23 before the speed per per hour, the 25 miles hour miles was under certainly speed the condi- limit, reasonable under upon Moreover, which the ice tions observable her. part skidded was not observable because Williams Totsky, merely her, looked wet to the road icy.

¶ Second, time to take 41. whether Williams had jury. question If the time action was a for the deliberate person an act is short for in must too frame which action, can then a court to take deliberate individual emergency as a matter that there was an determine 88, Klabunde, 2d 19 Wis. Schumacher v. law. "was however, the time frame If, N.W.2d for con- did time that the confronted driver have such emergency matter action," is no as a then there sidered surrounding the acci- Id. "circumstances law. respond opportunity to the driver's to dent and danger determining an in whether must be considered" individual is entitled to the doctrine as a proceed law, matter of or whether the issue should to jury. Seif, 49 Wis. 2d at 24. appears ¶ case, 42. In this it that the time frame preclude was not so short as a matter of to law deliber- ate action. However, the time frame was still short enough jury. to submit the issue to the Krenz testified beginning that the bus travelled the feet from the approximately of the skid to the intersection in four to surrounding five seconds. Under the circumstances opportunity accident, we conclude that the issue of her respond appropri- to and to take deliberate action was ately jury. submitted summary, proper jury In it was for the question light consider the of Williams' reasonably doctrine. The could con- emergency by clude that Williams did not create the any negligence of her own since the ice the bus skidded on was not observable and she traveled at a reasonable speed. reasonably Moreover, the time element could be enough preclude found to be short her deliberate negligence alleged reaction, and the concerned, at least part, management and control. §805.14(1) provides 44. Wisconsin Stat. challenge sufficiency standard for a to the of the evi- dence:

No motion challenging the sufficiency of the evi- dence as a verdict, matter of law to support a or an verdict, answer in a shall granted be unless the that, court is satisfied all considering credible evi- dence and reasonable inferences therefrom in the light most favorable to the party against whom the made, motion is there is no credible evidence to sustain a finding in favor of such party. only grant for a directed a motion

A court should circuit grant against party caution. To with extreme verdict appellate court and an motion, a circuit both such including in a the evidence court, this must view court, against party the whom to the manner most favorable 68-69 Tombal, 62 Wis. 2d at is taken. directed verdict (citations omitted). verdict A motion for a directed " only granted that, if the 'court is satisfied should considering be light in the most evidence

all credible against party motion is whom the the favorable to finding sustain a evidence to made, there is no credible party.'" Fire & Cas. v. United such a Weiss in favor of (1995)(quot- 365, 388, 541 N.W.2d Co., 197 Wis. 2d 805.14(1)). any ing to sustain a § "If there is evidence action, must be submitted the case or a cause defense (citing jury." Kielich v. Tombal, 62 Wis. 2d at 68 (1924)). 470, 198 Whittaker, 183 Wis. N.W. light Viewing in the most the evidence Williams, that credible evi- we conclude favorable to application supported dence proper instruct about doctrine, and it was in court erred such, the circuit the doctrine. As Totskys, directing since favor of the verdict proceeded law view of the on an erroneous circuit court applicabil- regard its doctrine and to the ity in case. this conditionally erred in court also 46. The circuit 805.15(1)

ordering sets Stat. a new trial. Wisconsin granting grounds for a new trial. a motion forth may a verdict and court set aside It states that a circuit trial, grant in the or are "errors trial when there a new weight contrary law or to the the verdict because inadequate dam- evidence, of excessive or or because ages, newly-discovered evidence, or because of inor 805.15(1). justice." § interests of It is true that "where the trial court has awarded a trial in the new interest of justice, this affirm court will unless there is a clear showing Luedtke, abuse discretion." Bartell v. (1971). 372, 377, 190 Moreover, Wis. 2d N.W.2d 145 we recognized have that supreme usually court defers to the trial court's

decision because of the trial court's opportunity to evidence, observe the trial and evaluate the and the highly discretionary. order is If ground one relied upon by the trial in granting court a new trial in the correct, justice interest of this is sufficient to affirm the order of the trial court. (quoting Hillstead Shaw,

Id. 643, 648, 150 34 Wis. 2d (1967)). However, case, N.W.2d 313 in this we conclude clearly that there was an erroneous exercise of discre conditionally ordering tion in circuit court a new appeals stated, trial. As the court of the circuit court erroneously exercised its discretion it in because erred finding applies its that the doctrine never to safety resulting a violation of a statute per determined, se. As we have 346.46(1), apply can a to violation of Wis. Stat. therefore, the circuit court erred as a matter of law. agree appeals

¶ 47. We also with the court of granted the circuit court erred when it a new trial on speed icy finding the basis of Williams' on roads. This appeals error, stated, the court of because a according found, reasonable could have to credible speed evidence that Williams' was not excessive. negligent Therefore, she was not a matter as oflaw. We agree appeals' with the court of conclusion. subrogees next address whether 48. We petition duty separately this court for review to have a subrogation preserve issue their claim. This question presents de law, which we also review 622, 628, 500 Frazin, Wis. 2d Schulte v. novo. preserve their hold that We N.W.2d separately petition subrogees this must claims, the stipu- they into a review, unless have entered court for rights participate at trial and their lation to waive by judgment. agree to be bound upon equitable prin "Subrogation ¶ rests pays ciple volunteer, for the one, than a who that other permitted wrong to look to the another should be subject paid wrongdoer to the extent it has and be to alleged wrongdoer." Employers Ins. of the the defenses Sheedy, 161, 170, 166 42 Wis. 2d N.W.2d v. Wausau Of (1969). Subrogation not create a new and does 220 independent County, v. Racine

cause of action. Wilmot (1987). However, 57, 63, 400 N.W.2d 917 136 2dWis. repre subrogation general that a interest single rule is separate part a cause of sents a distinct Montgomery Ward, v. at 61. See also Giese action. Id. (1983); 392, 404, 331 N.W.2d 585 Inc., 111 Wis. 2d though a This is even subro- Wilmot, 136 Wis. 2d at 64. subject procedural subrogor gee the same are to and a Logue, Sampson 20, 29, 515 2d 184 Wis. rules. 1994). (Ct. subrogor's right App. to be The N.W.2d subrogee right superior to the made whole is part separate Schulte, of a claim. on its recover Therefore, if an insured and a even 2d at 637. Wis. subrogated party's claim, claim tortfeasor settle subrogated provision for the if no is left unsatisfied party part Ritt v. Dental of the settlement. is made as (Ct. Assoc., 48, 77,

Care 199 Wis. 2d 543 N.W.2d 852 1995); App. Goding, 609, 633, Muchow v. 2dWis. (Ct. 1995). App. 544 N.W.2d 218 subrogees' interests this case are separate. Maxicare stated in its counterclaim and "any cross-claim that settlement between Plaintiffs prior only extinguish verdict, and Defendants will by the claim owned Plaintiff. Such settlement will extinguish separate, independent not cause of action owned Maxicare Health Insurance Com- (R. added.) pany." 4:2)(Emphasis at State Farm and city attempted preserve Milwaukee also their separate subrogation They requested interests. both Totskys in the event of a settlement between the Riteway, hearing would be held to determine city whether State Farm and the of Milwaukee could seek satisfaction of their claims. (Rule) (1997-98), 51. Wisconsin Stat. 809.62 governs petitions review,

which the criteria for for does expressly scope petitions exclude from its by subrogated parties. inquiry review The statute's centers on whether the decision below was adverse. (stating party may Section 809.62 that "a file. . .for ."). review an adverse decision. . . In v. Bortz Merri Co., 865, 869, 286 mac Mut. Ins. 2dWis. N.W.2d 16 (Ct. 1979), App. subrogee's appeal a was held not to be dependent parties' appeals. on Moreover, other Wis. 803.03(2)(b)(1997-98) options § Stat. lists the that a joined party may litigation. party A take must exer statutory options cise one of those to maintain the viability Sampson a 27; of claim. 184 Wis. 2d at Ander Garber, 389, 399, son v. 2dWis. 466 N.W.2d 221 (Ct. 1991). App. subrogated party's (subrogee's) Thus, a part appeal preserved as of a subro- are not interests on appeal. gor's city and Maxicare of Milwaukee 52. Both rights participate

stipulated at trial their to to waive by judgment. agreed Because to be bound and binding party the waiver unless a withdraws waiver is upon

timely motion, Wis. Stat. see 803.03(2)(b)(1997-98), city appears Mil- § it that stipulations have survived on waukee and Maxicare's by stipulation. they appeal, their are still bound since Mfg. Corp. Royal Wyandotte Co., Elec. Chemicals (1975) (stat- 577, 589, 225 N.W.2d 648 Inc., 66 2dWis. binding ing stipulations at trial are on made agree stipula- Riteway expressly appeal). to the did trial, therefore, must be bound made and tions by before city stipulations and Max- of Milwaukee its with stipulation However, no was entered between icare. Riteway such, Farm's subro- State Farm. As State gated dismissed. claim will be

HHHHHH 53. We conclude that 346.46(1) applies § under the of Wis. Stat. to a violation of Wis. Stat. case, a violation facts of this because 346.46(1) management an issue of is concerned with of the subro- further conclude that two and control. We city gated parties case, of Milwaukee this separate petition required file a Maxicare, are not to subrogated preserve on their interests review rights they stipulated appeal, their to waive because judg- agreed participate to be bound at trial and did not enter into However, Farm, which ment. State separate peti- required stipulation, to file a such subrogated preserve interest on its tion for review 405 appeal, subrogated separate because its interest is Totskys' from the claim.

By appeals the Court.—The decision of the court of is affirmed. (concurring). BABLITCH, 54. A. WILLIAM J.

Historically, carefully pruned this court has the dead- justice wood from various tort doctrines to ensure that danger is done. We abolished the zone of rule when negligent alleged infliction of emotional is in distress negli- favor of traditional elements of tort action gence. Casualty Co., Bowen v. Lumbermens Mut. (1994). 627, 2dWis. 517 N.W.2d 432 We abolished duty distinction between the owed to licensees and Reszczynski, Antoniewicz v. 836, invitees. 70 Wis. 2d (1975). special duty 236 N.W.2d We abolished rules of host-guest in automobile cases. McConville v. State Co., Farm Mut. Auto. Ins. 15 Wis. 2d 113 N.W.2d The time has now come to abolish the emer- gency doctrine. majority opinion valiantly

¶ 55. In case the this forges through jungle the doctrinal created application emergency negligence doctrine when alleged. respectfully disagree taking I is with this emergency course. The doctrine think- obfuscates clear ing precise question about the be answered action. Because the jeopardizes justice, place it has no in our tort law. generated by confusion negligence per se, doctrine arises under claims of as in present negli- case, the gence as as when common law well alleged. The doctrine should be with abolished respect to both. Negligence

Common Law issue, is at negligence common law 57. When change the standard doctrine does emergency in conduct is ques- of the whose required party of care has stated: already tion. As this court emergency face an is negligence The test of in the of situation, nonemergency that used in a identical to i.e., inaction conformable with was the action or prudent or man that of the reasonable expected situ- emergency in like circumstances. In the placed ation, yet prudent. the conduct can be mistaken and Nevertheless, test is prudent-reasonable-man dur- emergency, to the applicable prior at all times it, ing and after it. 691, 704, 151 N.W.2d Miglautsch,

Zillmer 35 Wis. 2d omitted). (1967)(internal and citations quotations Richard V. Campbell, In the words of Professor School, emergency Law of Wisconsin University is more than "orthodox nothing doctrine if are you negligent you "simply says doctrine" Recent Richard V. Campbell, are Professor negligent." Wisconsin, Institute Tort Law in of Developments of (1969). Education, CLEW, 34-35 p. Continuing Legal echo this standard.1 Other courts and commentators stated, "[t]he Kansas As the Court of Supreme al., on the Law Page et Prosser and Keeton 1W. Keeton 1984) (5th are, however, Torts, 33, ed. states: "There at 196-97 hedged 'emergency' a number of limitations which have any is to be It not mean that standard rule. does different required still that applied emergency. conduct is The circumstances, they would person under the as reasonable care, emergency using proper is appear who to one (Emphasis only of the circumstances." to be considered as one omitted.) added; footnote

of sudden regarded cannot as emergency be something from and to the apart unrelated fundamental rule that is everyone duty under a exercise care ordinary under A injury circumstances avoid to others. denial negligence." claim of but a Law P.2d Deemy, rence v. doctrine, as set forth Wis JI —Civil

1105A, is a restatement simply of the ordinary prudent standard of conduct.2 person (2d Harper, Gray, Torts, James & The Law 16.11 ed. § 1986) emergencies. person caught states: "Conduct in If a is in emergency, part a sudden that is in circumstances light person's judged." of which the conduct at that time tois be (Second) (1965),

Restatement of Torts 296 cmt. b discuss- ing the emergency, part, standard of conduct in an states in require The law does not of the actor more than it is reasonable to expect ofhim under the circumstances which surround him. There- fore, determining propriety the court and in of the actor’s position conduct must take into account the fact that he is in a speedy where he must make a decision alternative courses between that, therefore, of action and he has no time to make an accurate

forecast as to the of his choice.The mere fact that his choice effect improper.even though unfortunate does not make it it is one which the actor should not have made had he had sufficient time to likely consider all the effects followhis action. 2Wis JI —Civil 1105A: considering negligence management When as to and control bear may suddenly by emergency, in mind that a driver be confronted an brought by negligence. about or contributed to her or his own If happens compelled instantly that and the driver is to act to avoid collision, negligent the driver is not if he or she makes such a choice ordinarily prudent might person of action or inaction as an make if placed position. appears in the same This is so even if it later that

her or his choicewas not the best or safest course. apply any person negligence wholly This rule does not whose or part emergency. person in created the A is not entitled to the emergency benefit of this rule unless he or she is without fault in emergency. the creation of the Campbell years ago Professor 58. Over marginal questioned value was worth a rule of whether energy, expense it absorbed. Professor time, Developments Campbell, Tort Law Recent V. Richard Continuing Legal Education, Wisconsin, Institute of in Campbell pointed pp. Professor CLEW, 34-37 a substantial doctrine has been out that questions many appeals, raises a fact that in issue clarifying utility at the law. Id. the doctrine's about help- questioned was the doctrine He also whether special judge judges. Why a doctrine need does ful regarding negligence management and control as to thought judge's Campbell emergency? Professor an gives sufficiency the evidence "usual control over adequate power." addition, In at 36. Professor him Id. problems Campbell with the associated noted that may, given case, in a overwhelm important illustrate issues. To substantive and obscure opinion Campbell point, cited an of this Professor this discussing pages spent an emer- several court gency erroneously given instruction that only addressed the a few sentences court, circuit while (citing Menge key negligence in case. Id. at 36 issue (1969)). 578, 164 N.W.2d 495 Farm, 41 Wis. 2d v. State Campbell in alone has not been 59. Professor finding emergency a source of concern. doctrine logic simplicity "Despite of the sudden the basic frequently misapplied emergency doctrine, it is all too Page injury instructions." W. facts or misstated on the Torts, Keeton on the Law al., et Prosser and Keeton of omitted) (footnote (5th 1984) [hereinaf- p. ed. 33, Many Torts"]. are courts "Keeton, Law ter of abolishing emergency concluding is that: only respect by you emergency with considered This rule is to be negligence management your and control. as to consideration of potentially confusing; it warranted because is the stan- negligence jury dard instruction in a action is including sufficient; circumstances, and all the those giving "emergency," rise to an remain available for argue Jeffrey Ghent, counsel to to the fact finder. F. Emergency J.D., Doctrine, Modern Status Sudden of A.L.R. 5th 680 Mississippi Supreme ¶ 60. The Court identified First, two of central criticisms of the doctrine. even a well-drafted instruction can create confusion as to emergency person whether in an the reasonable stan- applies, dard or some other standard. "The hazard of relying emergency' on the doctrine 'sudden of is the tendency principles to elevate its above what required proven negligence Knapp in to be action." (Miss. 1980). 196, 198 Second, 392 So. 2d Stanford, emergency court noted that the instruction tended principle comparative negligence. confuse the Id. Mississippi orderly disposal concluded, court "the negligence by applying cases would be best served principles uniform under all circum stances." Id. at 199. Supreme

¶ 61. The Hawaii Court also observed foolhardy jeopardize that it "would be the outcome of by giving adding trial an instruction little to the basic jury charge given any negligence that must be in (Haw. Izawa, action." DiCenzo v. 723 P.2d 1986). prejudicial The court stated that the risk of error giving possi- instruction exceeds the bility doing so, of error and the instruction therefore should be withheld. The court stated that the purportedly constituting circumstances an proper argument by are matters for counsel to the question always because "the conduct in must be con-

410 surrounding light all in the sidered Id. circumstances." Similarly, Supreme Court of New Mex- 62. emergency jury sudden instruction on

ico held that Dunleavy longer negligence cases. used in should no be 1993). (N.M. The court found Miller, P.2d 1212 862 unnecessary the standard of because the instruction already adequately in another instruc- stated care is emergency 1218. It also noted that tion. Id. at by overemphasizing the confusion doctrine could create party's surrounding conduct and circumstances seeming imply of care that a different standard emergency. applies in Id. a sudden instruction Wisconsin, In party already in which: the limited to those situations negligence seeking in the free from the instruction is rapidly; emergency; the events occur creation of the management negligence alleged is related to and, the 691, 697, 158 O'Brien, 38 2d Edeler v. Wis. and control. application, limited 301 Given its N.W.2d creating utility, potential confusion, doubtful end this instruction should use of the clearly jurisdiction Our instruction as well. JI —Civil 1001. standard of care. Wis sets forth the party's argue whether a Trial counsel can pru or circumstances were careless actions under the mistaken.3 dent, but

3 describing yet prudent" formulation The "mistaken and while by Justice Holmes emergency principle was set down Supreme Judicial Judge Massachusetts he Chief 1993) (N.M. Miller, 1212, P.2d 1216 Dunleavy v. Court. (1902)). Ry., N.E. (citing Kane v. Consol. St. Worcester Negligence Per Se n Turning negligence per se, 64. next to it can be concluded that use of the doctrine should why Understanding end here as well. negligence per

doctrine should be abolished when se is alleged requires analysis relationship an of the between statutes and torts.4 distinguish statutory

¶ 65. Our cases between give negligence per violations that rise to se and those give liability." Huebner, rise to "absolute D.L. v. (1983). 2d 639-40, Wis. 329 N.W.2d 890 liability, if Under doctrine of absolute the court legislature place determines that the intended to injury entirely upon burden for the individual who vio- liability simply by statute, lated the then lies establishing party that a violated the statute within period injury time which the occurred and then by proving damages. Id. at 640. doctrine, Under this contributory negligence causation is not an issue and not a defense. AId. violation of child labor laws has give liability. been held to rise to absolute Id. Absolute liability statutory rarity. for a Keeton, violation is a § Torts, 36, Law at 228. negligence per hand, 66. On the other se is "a ordinary negligence." Huebner,

form of 110 Wis. 2d at Negligence is conduct that "falls below a standard by protection established against law for of others Keeton, unreasonable risk of harm." Law 4A relationship discussion between torts and stat utes is found in two articles Professor Caroline Forell: Torts, Actions, Statutory Statutory Duty Forell, Caroline ?, Negligence Per Se: What's the 77 Or. L. Rev. 497 Difference Statutory Duty Action in Tort: A (1998); Forell, Caroline Statutory Hybrid, Common Law 23 Ind. L. Rev. 781 / (footnote omitted). The standard of § Torts, 31, at 170 ordinary prudent person can be estab- an conduct of judicial including through means, lished several (Sec- legislative Restatement enactment. decision or ond) has held that when Torts 285. "This court agency prescribes legislature an administrative or particular done, the acts shall or shall not be what establishing may interpreted as statute or rule be neg- constitutes care, deviation from which standard of Plumbing McGarrity ligence." Co., 104 Wis. 2d v. Welch (internal (1981) quotation 418, N.W.2d 37 414, omitted); 312 Only p. § Keeton, Torts, 36, 230. cau- Law of negligence, contributory sation, and defenses such as 640; Huebner, 110 Wis. 2d at remains be resolved. Torts, 36, at 230. Keeton, Law of safety ¶ if statute To determine violation of a 67. negligence per se, elements must be three constitutes satisfied:

(1) the the statute was type the harm inflicted was (2) injured was prevent; person designed persons sought protected; to be within the class (3) legislative intent expression there is some imposition for the that the statute become basis liability. civil Heritage Co., 228 Wis. 2d Mut. Ins.

Antwaun A. (1999) (quoting Sol Tatur v. 66-67, N.W.2d 456 (1993)). 735, 743, srud, 2d 498 N.W.2d 174 Wis. requirements If a court determines that 68. negligence per established, then the se are to establish it standard of care. When the statute set the terms of applies, excuse. functions as an doctrine 522, 527, 117 Co., 2d Ins. 17 Wis. La Vallie v. General some- term "excuse" can be N.W.2d misleading.5 Liability what is not avoided under the party justi- doctrine is because somehow violating Liability fied in statute. avoided because it is concluded that under all the circum- ordinarily stances the actor's conduct was that of an prudent only person. This can occur because the emer- gency changes duty the actor's from compliance with terms of the statute into that of a person circumstances, reasonable including confronted all the emergency. party words, In other asserting negligence per se loses the benefit of the doc- having duty trine, which is the element of established. again Campbell, really To echo do we need a Professor special doctrine for this? perpetuating

¶ 69. Rather than a nineteenth century6 arguably doctrine that does more to obscure justice bring about, than to it use of the sudden emer- gency negligence per doctrine should end when se is alleged. place simply In its this court should make a respective

clear statement as to the burden that must by party negligence per be carried each when se is alleged. party If a establishes violation of a motor vehi- safety necessary cle statute and the elements to find negligence per production se, then the burden of should against party shift to the the whom action lies to estab- ordinarily lish that his or her conduct that of an prudent person under the same If circumstances. the party his burden, meets or her common law

5 George Fletcher, Utility See P. Fairness and in Tort The (1972) ory, 537, 85 Harv. L. Rev. 557-64 for a discussion of the justification. distinction between excuse and history For a brief the emergency examination of of the (N.M. doctrine, Dunleavy Miller, see v. 862 P.2d 1993), and the sources cited therein. jury question. that If the court concludes a

becomes burden, then party her meet his or has failed to this Causation standard of care. set the of the statute terms contributory negligence estab- then remain to be and Oregon Supreme that the is the standard lished. This disap- expressing apparently In a case follows. Court Oregon emergency court proval doctrine the the party has the evidence establishes held: "When party has the statute, such a motor vehicle violated producing nevertheless, he that, evidence burden reasonably. acting evidence such Without was party negligent Barnum Wil a matter of law." is as (Or. 1972). Whether 122, 126 liams, 504 P.2d "emergency" is irrelevant. an constitute circumstances light question in of all the considered is The conduct surrounding circumstances. apply yeoman-like majority's

¶ effort regarding illus- doctrine law current doctrine contortions the intellectual trates safety applicable enough generates. that the It is not parsed into addi- The statute is identified. statute management involving only of them duties, some tional application amenable and thus and control Majority Op. ¶ can at 36-38. How doctrine. process accom- will that this contorted feel assured we plish justice? abolishing majority the emer- notes, 72. As approach adopting

gency an alternative doctrine Majority Op. change at case. in this the result will surely use a continue to no reason to That is 31 n.7. at its worst its awkward that is at best although justice. I concur jeopardizes Therefore, majority I case, would in this reached conclusion opportunity to abolish argue seize the that we should doctrine Wisconsin. " 'That court best serves the law recognizes which that the rules of which grew up law in a remote generation may, in the fullness of experience, be found to generation badly, serve another and which discards the old rule when it that finds another rule represents law according what should be to the established and judgment society, settled and no property rights considerable have become vested in reliance upon the old rule. It great is thus writers upon the common law have discovered the source growth, method of its growth and in its found its health and life. It is not and it should not be stationary. Change of this character should not be left legislature.'" to the Esser,

State v. 567, 581-92, 115 Wis. 2d N.W.2d 505 (1962) (quoting from Mr. Cardozo, Justice The Nature Process, the Judicial Adherence Precedent, 142, (1945 ed.)). 150-152 (dissenting). 73. ANN WALSH BRADLEY, J. stop sign In its examination of the statute, Stat. Wis. 346.46(1), majority § plain meaning thwarts the statutory interpretation canon of construction. Its gives stop sign plain meaning per- statute a mits excused violations based on without any language supporting imputed interpretation. Additionally, majority overlooking errs in the law apply reviewing that we must when the circuit court's grant justice. of a new trial in the interest of majority's interpretation primarily 74. The accomplished by examining the words of Wis. Stat. 346.46(1), by analogizing § stop sign but statute to starkly only different statute. The common thread 346.46(1) weaving § Wis. Stat. and Wis. Stat. 346.05(1) safety is the classification of both as stat- majority treated such statutes have would utes. The purposes. to identically Yet, it fails all conceivable for legislative by doing violated so, it has discern unequivocal expressed word- clear and in the as intent ing 346.46(1). § Stat. of Wis. safety same of the are all statutes 75. Not provide "con- of for the excuse Some

breed. clusively others violation, while their determined" (5th Page ed. Keeton, The Law Torts W. do not. determining 1984). guide in instructive The most wording remains the exists an excuse whether majority find a stated need to concedes the statute. wording cites to of the statute in the excuse authority for that as treatises and other Restatement premise.1 interpreting Majority Op. ¶¶ In Wis. 29-31. 346.46(1) application permit of the emer- § to Stat. gency majority however, violation,

doctrine to its explain emer- of an absence the unmistakable fails to stop sign gency statute. text of the from the excuse 288(A) (Second) Torts § the Restatement particular, 1In provides:

(1) legislative an adminis- enactment or of a An excused violation negligence. regulation not trative (2) regulation not to is construed or Unless the enactment excuse, excused when permit its violation is such (a) incapacity; of the actor's reasonable because the violation is (b) of the occasion nor should know he neither knows compliance; comply; (c) diligence or care to after reasonable he is unable (d) due to his own with an he is confronted misconduct; (e) actor or greater ofharm to the compliance risk would involve to others.

(Emphasis supplied.) 346.46(1) 76. Wisconsin Stat. is not amenable application plain doctrine. The

language provides:

Except when directed proceed by a traffic officer or traffic signal, every control operator of a vehicle approaching an official stop sign at an intersection shall cause such vehicle stop entering before intersection and yield shall the right-of-way to other vehicles which have entered or are approach- ing the intersection upon highway a which is not by controlled an official stop sign or signal. traffic (2m)-(4) Likewise, any subsections are silent as to transgression, emergency, excused duty based on of the stop crossings, crossings, to porary stop signs. at school railroad and tem-

¶ expressed allowing 77. In the absence of words plain language an excuse in situations, the 346.46(1) § of Wis. pro- Stat. must be construed not to (2d) 288(A). vide such an § excuse. Restatement Torts, See 4, also Ball v. District Area Bd., 117 529, Wis. 2d (1984) (legislature presumed 539, 345 N.W.2d 389 to chosen). import have known the of the words it has No duty imposed by may deviation from the the statute emergency. then be excused this a claim of Indeed, previously interpreted plain language court has 346.46(1) imposing § duty Wis. Stat. as an absolute to obey stop sign. Sailing a Wallestad, 32 Wis. 2d 435, (1966). 441,145 N.W.2d 725 legislative history ¶ stop sign 78. The stat- supports interpretation. originally ute this As enacted, stop sign required statute all vehicles to "come to a complete stop thirty full and within feet of the near limits of an intersection at which has been erected an stop sign signal." official or § traffic Wis. Stat. 85.69 provide did for an The text of the statute emergency. exception on based ¶ An in 1943 broadened 79. amendment any stop sign stop requirement include at a to public property upon transporting persons a or "device" Again, highway. 152, no excuse to Ch. of 1943. Laws duty compliance provided in the of absolute of the statute. text replaced the for- 346.46 80. Wisconsin Stat. language 85.69 in 1957 added

mer Section signal permitting a or control traffic officer traffic § 1, ch. Laws of 1957. cars into intersections. direct Additionally, statute revised renumbered stop required stop or at the line before drivers either range entering providing than crosswalk, rather stop. make a feet within which to stop intended that "a must statute point made at where the all circumstances be under operator efficiently traffic on vehicle can observe of a intersecting roadway entering inter- before such roadway." Legislative secting Note, 1957 S.B. Council added). provision again, (emphasis made Yet no 99 emergency, although emer- excuse based on for an gency prominent in feature had become to See Parkes v. of this state and dated back 1915. law (1915); Siegl Lindenmann, 101, 151 161 N.W. 787 Wis. (1923). See 195 N.W. 867 also Watson, 619, 181 Wis. City 35, 38, 26 N.W.2d Milwaukee, Wis. Basile v. (1947) (noting "[t]he doctrine is of that established."). course well misinterprets majority nonetheless language discounting precedent

statutory in an while reasoning capture legal attempt of LaVallie v. Co., 2d 117 N.W.2d Ins. 17 Wis. General statutory (1962), apply at issue and it to the violation in this case. In an expansion of the LaVallie, in holding the majority transposes application the emer- gency doctrine from a statute that provides for emergency exceptions to a remarkably dissimilar stat- that, ute by its very words, does not permit application of the doctrine. 83. The statute in LaVallie governing roadway

position requires the operator of a vehicle "shall drive on the right half of the roadway and in the right- hand lane of a 3-lane highway, except" when a number of excused conditions exist.2 These excused conditions encompass (d) emergency situations, as implied sub. and confirmed by the Wisconsin Jury Instructions. Wis JI —Civil 1135 and 1140. Although the LaVal- court lie determined that the emergency doctrine applied relieve driver of negligence se in per the violation of Wis. Stat. LaVallie does not stand for the 346.05(1),

2Wis. Stat. has substantially §346.05 remained intact since it was addressed in LaVallie and reads in pertinent part: (1) Upon roadways operator all of sufficient width the of a right roadway vehicle shall on right- drive half of the and in the highway, hand except: lane of a 3-lane (a) making approach When an for a left turn under circum- relating stances in require driving which the rules to left turns on roadway; the left half of the or (b) overtaking passing When and in circumstances in which relating overtaking passing permit the rules and require or driving roadway; on the left half of the or (c) right roadway When the half of the is closed to traffic repair; while under construction or or (d) overtaking passing pedestrians, When animals or right roadway; obstructions on the half of the or (e) driving particular When in a lane in accordance with signs designating or markers moving such lane for traffic in a particular designated speeds; direction or at or (f) roadway designated posted When the has been one-way traffic, subject, however, (3) to the rule stated in sub. moving

relative to slow vehicles. emergency proposition doctrine excuses that the broad including negligence per all of absolute se, violations statutory duties.3 sign stop does

¶ discussed, the statute As 84. of an provide on the basis an excused violation emergency instructions Likewise, the situation. potential or excuses, make no mention Yet the 1325 and 1325A. JI —Civil Wis otherwise. "[ejxcept language, upon majority narrow relies proceed traffic or a a traffic officer directed to when analogizes signal" narrow cir- these two and control exceptions contained to the numerous cumstances 346.05(1). list § within Since statutes both Stat. Wis. stop sign majority opines exceptions, stat- that the subject to the is thus is not "immutable" ute Majority Op. at 33. doctrine. majority fundamen- discern the fails to 85. exceptions. In nature of those in the tal differences in Wis. Stat. circumstances narrow essence, 346.46(1) signal permit or traffic § traffic officer efficiently duty traffic on observe the driver's assume proceeding roadway intersecting into the before emergency doctrine applied the court also The LaVallie 346.34(1) (1961), read which violation of Wis. Stat. excuse the part: in relevant unless the vehicle person an intersection turn a vehicle at

No shall roadway. turn a position upon . .or otherwise proper is in roadway upon right or left or move from a direct course vehicle reasonable can made with such movement be and until unless safety. substantively same remained statutory has This section exer- deviating a direct course from the driver requires duty Thus, statutory this ordinary JI —Civil care. Wis cise stop sign by the duty imposed from absolute also differs statute. Kraskey Johnson, 201,

intersection. See Wis. 266 (1954) (legislative purpose 207, 112 63 N.W.2d behind stop sign duty stopping statute not confined to of but duty observation); Majority Op. also to extends of at (recognizing duty underlying ¶ 36 the three-tiered Wis. 346.46(1)). § Stat. exceptions

¶ 86. limited Wis. of Stat. 346.46(1) emergency § do not address conditions. The duty obey has a driver still to the traffic or officer con- signal. guidance trol In the of either, absence from every of a driver vehicle shoulders the driver's own duty stop, proceed. observe, to and then exceptions In of contrast, 87. one the several roadway governing position listed under the statute specifically provides discharge duty from the to proper roadway position maintain when the driver encounters obstacles the on road. Stat. Wis. 346.05(l)(d). may § These obstacles include unexpected such conditions as an cloud of dust or a sudden mechanical As the failure. Comments to Wis reveal, JI —Civil 1135 and 1140 there are numerous emergency exceptions requirement driving to a of in right right the lane or the side of road.

¶ 88. Because of the essential distinctions exceptions provided between the under statute, each majority misguided justifying application the is in stop sign statute. Its plain meaning result is in direct contravention 346.46(1), duty § Wis. Stat. creates which an absolute compliance. majority ¶ 89. The errs its wholesale transfer legal reasoning light significant of LaVallies of differences between the statutes. A better candidate for statutory comparison crosswalk statute presented Kohn, in Edwards v. Wis. N.W. creating (1932), interpreted this court has as which duty. an absolute plaintiff Edwards, was struck In stop slippery road due that unable

vehicle was crossing plaintiff an time, At the conditions. crosswalk. marked Wisconsin intersection within 85.44(1) provided governed the action Stat. ány yield right operator "[t]he of the of vehicle shall any highway way pedestrian crossing to a the within or at an intersection marked unmarked crosswalk except the of at intersections movement those where regulated by being traffic traffic officers or traffic is signals." 385. Id. at control ¶ entertain Edwards court refused to 91. The jury the should have defendant's contention that the reasonably acted to he had instructed as whether been violating the statute. under the circumstances in had the defendant Instead, court determined that the way, yield right duty plaintiffs to of the an absolute by showing duty of not reasonable excusable the Id. in conditions. the face of inclement weather action closely ¶ 92. statute at issue Edwards sign provides parallels stop and identical the statute duty compli- impose exceptions. of Both an absolute by emergency may be the ance that not excused emergency Although doctrine the label of the doctrine. directly Edwards, the of not invoked in rationale essence the case. The defendant the doctrine is the seeking proposed excuse instructions because yet slippery conditions, the existence of road yield duty to that he had an absolute court determined by mitigated weather conditions. that was not severe majority ¶ the concurrence suffer 93. The infirmity: recognize the failure from same 346.46(1) duty imposes an absolute Stat. Wis. emergency apply. which excuses of do not In its call to wholly negligence per abandon the doctrine of se and doctrine, both of which have become entrenched in the law of this state, the concurrence why obscures the actual reason purpose analyzing statutory serves no violation before us. Essentially,

¶ urges 94. the concurrence adoption presumption of a more relaxed rebuttable safety replace standard for violations of statutes to negligence per Following suggestion se. of the con- negligence currence would mean that rather than being "conclusively statutory determined" viola- only tion, would remain tentative until the production defendant failed to meet the burden of establishing reasonably that he or she acted under the Concurring Op. circumstances. at 70. only may result, As a courts consider

emergency conditions as in this case to excuse a statu- tory may myriad violation, but courts also consider a surrounding other factors and circumstances the statu- tory duty violation. Id. The violation of an absolute set safety forth in a statute warrants a stricter standard contemplated by than the one the concurrence. ¶ repeated 96. The concurrence makes refer- Campbell ences support to Professor Richard to shelving the doctrine for both common law negligence per Yet, se. there is no inti- Campbell mation that Professor advocates the negligence per abandonment of se that would result adoption from an ofthe rationale of the concurrence. To contrary, Campbell's recognizes the cited text the inte- gral negligence per plays role that se in violations of safety being automobile statutes, such violations com- monplace. Campbell, Developments Recent Tort Law of Legal Continuing Education, of Wisconsin, Institute in CLEW, 83-85 approval

¶ Williams, 97. In its of Barnum (Or. errs, 1972), by the also P.2d concurrence embracing of that has sub rationale a court been the introducing ject into of for chaos the law to criticism Statutory negligence. Torts, Forell, Statu See Caroline Duty tory Negligence Actions, Per Se: the What's (1998). The state of con 77 Or.L.Rev. 497 Difference?, Oregon engendered by law relates common as it fusion liability statutory has an to for violations evoked clarifying guidelines legislature appeal to the By remedy advocating the Id. at the confusion. 532-34. doctrines abandonment exchange well-established vitality, legal approach uncertain for an with needlessly too much. sacrifices the concurrence apparently applying ¶ case, the 98. In this after doctrine, that inclement the concluded resulting slippery emer- roads created an weather sign. duty stop stop gency It the at that excused party negligent. found neither parties, "innocent" Yet, as between two necessarily imposed by legislature duty absolute sign plain language stop the tie. breaks history legislative supported allows as statute emergencies. In the face an absolute no excuses for gives duty, legislature to the innocent the benefit holding safety violating party statute, while majority and the concur- Both the violator accountable. duty expressed apply in Wis. fail the absolute rence Stat. 346.46. majority's lim- in this case is not 100. The error duty imposed by disregard

ited to its stop absolute sign also to its refusal to honor statute but extends grant interest of circuit of a new trial court's justice. Unlike a review of a verdict, directed in which uphold jury's findings, we seek to on review of the grant justice of a trial in new the interest of we seek findings to sustain the reasons circuit court's and con Chicago Transp. clusions. Co., Krolikowski v. & N.W. (1979). Inc., 573, 580, 89 Wis. 2d 278 N.W.2d 865 . ¶ 101. Because of the broad discretion vested only court, circuit a reversal is warranted in the erroneous exercise of its discretion. Id. If the court grounds granting offers several for a new trial in the justice, only interest of one need be reasonable or suffi cient to sustain the contention that the court did not erroneously exercise its discretion. Loomans v. Mil waukee Co., Mut. Ins. 656, 662, 158 38 Wis. 2d N.W.2d granting

¶ Judge In trial, the new Skwier- expressed unequivocal opinion jury awski his that the absolving negligence. had erred in the defendants of He 1) grounds: ordered the trial on two distinct the emer- gency apply negligence per doctrine does not to excuse 2) stop sign sé in the violation of the statute and apply doctrine does not because the bus emergency. Majority driver had Op. created her own at ¶¶ 46-47. ground, majority's 103. As to the first con- misapprehended

clusion that the circuit court the law justifies reversal under its holding. Judge However, Skwierawski's alternate ground granting a new trial does not warrant rever- sal, but rather mandates our deference. majority ground 104. The notes that the second

also constitutes an erroneous exercise of the circuit court's discretion, because a reasonable could have concluded that the bus driver did not create her own emergency. Majority Op. doing ¶at 47. In so, the regard, completely majority the law in this overlooks reviewing reasons to requires to look for court a which Luedtke, 52 Wis. 2d v. court. Bartell circuit sustain the 377, 190 N.W.2d majority Additionally, men- avoids ¶ the 105. appeals' tioning that a determination court of the Judge agreed may with have also reasonable negligent finding the bus driver Skwierawski creating Riteway Totsky emergency. Bus her own (Ct. App. 889, 905, 584 N.W.2d Serv., 220 2dWis. 1998). acknowledged appeals rea- the thus of court underlying conclusion. the circuit court's sonable basis present case do not ¶ in this 106. The facts of the bus was that the driver evidence uncontroverted emergency. creating any negligence her own free of previously ice, and she on skidded twice had The driver slippery Based conditions. the road of had been aware speed experience, knowledge past her on may per excessive. have hour indeed been miles to 16 thus not without conclusion was court's The circuit grant in the trial its of new basis, and reasonable reversing By justice sustained. should be interest of majority due defer- fails to afford order, however, authority discretionary the circuit court. ence to the plain majority violates sum, In 107. by approving sign stop meaning statute application It also overlooks doctrine. ofthe appellate to a circuit court an afforded the deference granting in the trial a new when discretion court's Accordingly, justice. I dissent. interest of CHIEF state that I am authorized JUSTICE ABRAHAMSON S. SHIRLEY JUSTICE join this dissent. T. PROSSER DAVID

Case Details

Case Name: Totsky v. Riteway Bus Service, Inc.

Court Name: Wisconsin Supreme Court

Date Published: Mar 28, 2000

Citation: 607 N.W.2d 637

Docket Number: 97-0530

Court Abbreviation: Wis.