Summary
following the Walker holding
Summary of this case from Chandler v. National Railroad Passenger Corp.Opinion
No. 91-1232.
Submitted on briefs October 3, 1991. —
Decided December 27, 1991.
APPEAL from a judgment of the circuit court for Eau Claire county: BENJAMIN D. PROCTOR, Judge. Affirmed.
On behalf of plaintiff-appellant, the cause was submitted on the briefs of Charles Jordan of Jordan Wachs of Eau Claire.
On behalf of defendants-respondents, the cause was submitted on the brief of Eric J. Wahl of Wiley, Wahl, Colbert, Norseng, Cray and Herrell, S.C. of Eau Claire.
Before Cane, P.J., LaRocque and Myse, JJ.
Kathryn Estridge appeals a summary judgment dismissing her personal injury action against the city of Eau Claire and its insurer on public policy grounds. Estridge was injured when she fell from her bicycle after being struck in the face by thorny branches that had overgrown the city sidewalk. The circuit court applied the public policy holdings of Sanem v. Home Ins. Co., 119 Wis.2d 530, 350 N.W.2d 89 (1984), exonerating a county from liability at common-law for allegedly negligent plowing of snow upon highway median strips, and Walker v. Bignell, 100 Wis.2d 256, 301 N.W.2d 447 (1981), exonerating several municipalities from liability at common-law for their alleged negligent failure to cut roadside weeds so as to provide unobstructed vision at intersections. We agree that these decisions control the outcome here and affirm the summary judgment.
Walker applied public policy to reject the plaintiff's argument based upon common-law negligence as well as the argument that either sec. 66.96(2), Stats., relating to noxious weeds, or Sec. 81.15 Stats., relating to highway defects, were safety statutes giving rise to a civil damage claim. The court did reverse the summary judgment on other grounds not applicable here, holding that there was a potential claim for failing to cut vegetation along a highway where the growth was attributable to legislatively authorized beautification or erosion control programs. Walker, 100 Wis.2d at 273, 301 N.W.2d at 456.
Walker first observed that Wisconsin case law recognizes that whether liability should be imposed in a given situation is a question of policy, even where the chain of causation between conduct and harm is complete and direct. Id. at 265, 301 N.W.2d at 453. The court then held as a matter of public policy that municipalities should not be exposed to common-law liability for the failure to cut vegetation, stating:
Exposure to such liability would, we feel, place an unreasonable and unmanageable burden upon municipalities . . . not only in terms of keeping areas adjacent to every highway intersection clear of visual obstructions at whatever intervals are necessitated by the vicissitudes of Wisconsin's climate, but also in terms of the potential for significant financial liability . . . .Id. at 266, 401 N.W.2d at 453.
Estridge would distinguish Walker on grounds that the accident here was caused by physical contact with the growth as opposed to a mere obstruction to vision. We fail to see the significance of such a distinction in terms of the public policy underlying the Walker decision.
Estridge also relies upon Bystery v. Village of Sauk City, 146 Wis.2d 247, 430 N.W.2d 611 (Ct.App. 1988), holding that a municipality may be held responsible for a bicyclist's injuries caused by improper sidewalk maintenance. That decision was grounded on a legislative safety statute, sec. 81.15, Stats., that declares municipalities liable for civil damages for failure to maintain highways. "Highway, as used in sec. 81.15 includes sidewalks. Webster v. Klug Smith, 81 Wis.2d 334, 339, 260 N.W.2d 686, 689 (1978). The Walker decision, however, expressly rejected the extension of sec. 81.15 to impose upon municipalities a duty to cut roadside vegetation to assure unobstructed vision to the public. Id. at 258-59, 301 N.W.2d at 450.
Section 81.15, Stats., provides:
If damages happen to any person or his or her property by reason of the insufficiency or want of repairs of any highway which any town, city or village is bound to keep in repair, the person sustaining the damages has a right to recover the damages from the town, city or village.
Because immunity arises as the result of the public policy articulated in Walker, and because that case also holds that the legislature did not intend to impose liability through the enactment of sec. 81.15, Stats., the circuit court properly granted summary judgment. Because we reject Estridge's claim on the basis of the precedent established by Walker, it is unnecessary to address the city's argument that she failed to establish the element of duty on the part of the county.
By the Court. — Judgment affirmed.