01-0623 Estate of Robert Wagoner et al. v. City of Milwaukee

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“Under Walker, municipalities do not have a duty to cut roadside vegetation. Walker does not distinguish between municipalities that are negligent because they have not cut roadside vegetation at all and municipalities that cut roadside vegetation, but do so negligently. Rather, the immunity in Walker is all- inclusive because it precludes courts from even reaching the duty issue. …Significantly, Walker has been extended to protect municipalities from common law liability where they have taken affirmative steps to maintain their roadways, but have allegedly done so in a negligent manner….

” Although the legislature has, in § 80.01(3), mandated that the governmental authority encompassed by that provision “shall remove, cut or trim or consent to the removing, cutting or removal of any tree, shrub or vegetation in order to provide safety to users of the highway,” it has not also created a private cause of action for damages caused by a failure to comply with that mandate. …If the rule against governmental liability is to be abrogated, it must be done by the supreme court and not by us.”

The grant of summary judgment to the city is affirmed.

Recommended for publication in the official reports.

CONCURRING OPINION: Schudson, J. The majority acknowledges the estate’s “alluring” argument but explains that “we are bound” by Walker v. Bignell. I agree. But this case may offer the supreme court the opportunity to consider whether Walker’s holding is as all-encompassing as its terms seem to suggest.

Dist I, Milwaukee County, Lamelas, J., Fine, J.

Attorneys:

For Appellant: Thomas Kent Houck, Milwaukee

For Respondent: Patricia A. Fricker, Milwaukee