00-1836 Physicians Plus Ins. Co. v. Midwest Mutual Ins. Co.

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Plaintiff was injured in an accident at the intersection of town and county roads where the county stop sign was completely obscured by tree branches protruding from private land over the town right of way; an arborist testified that the tree growth indicated the sign had been obscured for several months.

Where photos of the scene taken on the day of the accident show that the sign was at best partially obscured by the tree branches, and it is undisputed that this hazardous condition existed for at least two to three months prior to the accident, we affirm summary judgment for the plaintiff on her claim that the branches created a nuisance, and that the County, the Town, and the landowner each had a duty to correct the condition.

However, where there is evidence in the summary judgment record that plaintiff had consumed alcohol immediately prior to the accident, that she was “sightseeing” and not paying attention to road signs, and that she had not seen the “Stop Ahead” sign, which was not obscured on the day of the accident, we conclude that reasonable fact finders could differ on the issue of whether plaintiff’s actions were the sole cause of the accident; so we reverse summary judgment for the plaintiff on the issue of causation.

Remaining to be tried, therefore, are the issues of whether the hazardous condition was a cause of plaintiff’s injuries; whether plaintiff was negligent, and if so, whether her negligence was a cause of the accident; if necessary, the apportionment of causation between the hazardous condition and plaintiff’s negligence; and damages.

As the trial court observed, the question of apportionment of liability for damages among the three defendants, should the jury assign some or all responsibility for plaintiff’s injuries to the hazardous condition they failed to correct, is premature, and may be decided post-verdict.

Affirmed in part, reversed in part, remanded.

Recommended for publication in the official reports.

Dist IV, Dodge County, Bissonnette, J., Deininger, J.

Attorneys:

For Appellant: Arnold P. Anderson, Madison; Thomas E. Goss, Jr., Milwaukee, et al.

For Respondent: Richard L. Schmidt, Madison; Eric A. Farnsworth, Madison, et al.