00-1836 Physicians Plus Ins. Corp. v. Midwest Mutual Ins. Co., et al. (57414)

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“[T]the Frankes’ liability is not based on their failure to maintain the highway, a stop sign, or a general area of visibility. Rather, their responsibility is based solely on their failure to trim the branches of their tree, which they knew, or should have known to be obstructing the view of a stop sign-their failure to abate the public nuisance. Because responsibility is strictly based on the facts of this case, we disagree with the Frankes’ conclusions that there is no sensible or just stopping point.

“We also disagree with the Frankes’ argument that liability places an unreasonable burden on the landowner. The burden is to trim one’s own tree when one knows, or should know, that it is creating a hazardous condition. We do not find this unreasonable. Furthermore, we reject the Frankes’ arguments that their liability is out of proportion to the liability of the motoring public and municipalities. As we discuss below, the municipalities in this case are also liable for maintaining a public nuisance. The proportion of each defendant’s liability, however, is an issue of causation, and of comparison, which we previously concluded is not appropriate for summary judgment. We, therefore, reject their final public policy argument and affirm the court of appeals’ holding that the Frankes had a duty to abate the public nuisance, and, if causal, are liable for failing to do so.

“[T]he Town of Leroy argues that it is not liable here because it did not have a common law duty to maintain the stop sign. We first note that this argument erroneously restricts the scope of this case to the stop sign and ignores the Town of Leroy’s duty to trim the tree branches located in its right-of-way obstructing visibility of a stop sign. While we acknowledge that the Town of Leroy does not have a common law duty to maintain stop signs placed and maintained by Dodge County, this argument ignores the statutory provisions discussed above, charging it with ‘the care and supervision of all highways in the town.’ Although Wis. Stat. § 81.01 includes the phrase, ‘except as otherwise provided,’ we decline to construe that phrase to mean that if another governmental entity also has a duty to maintain a stop sign, the Town of Leroy is relieved of its duty to maintain its highways. Rather, we conclude that both governmental units had a duty, neither of which was exclusive of the other.

Based on the statutory provisions requiring the Town of Leroy to maintain its highways, including its rights-of-way, we conclude that it had a duty here to trim the tree branches that it knew, or should have known, were present in its right-of-way, and which were obstructing the view of a stop sign. Accordingly, we affirm the conclusion of the court of appeals regarding the Town of Leroy’s duty to abate the public nuisance.”

Affirmed.

Review of a decision of the Court of Appeals, Crooks, J.

Attorneys:

For Appellant: Arnold P. Anderson, Madsion; Thomas E. Goss, Jr., Milwaukee

For Respondent: Robert E. Storck, Mayville