00-3258 Burg v. Cincinnati Casualty Ins. Co.

Listen to this article

An unfinished roadbed under construction does not constitute a “roadway” for purposes of Wis. Stat. § 346.51, which prohibits the parking, standing, or stopping of a vehicle on a roadway, and therefore does not provide a basis for a finding of negligence per se.

Plaintiff was severely injured when he swerved the snowmobile he was driving, at night on the unfinished bed of a new highway, to avoid hitting another snowmobiler who had moments earlier stopped and turned off his machine, extinguishing the lights.

The circuit court correctly denied plaintiff’s motion for a determination that the stopped snowmobiler was negligent per se for violating either statute; the court of appeals erred in reversing.

DISSENTING OPINION: Crooks, J. “I conclude that the driver of the snowmobile was indeed ‘operating’ the snowmobile as defined in Wis. Stat. sec. 350.01. I would affirm the court of appeals’ decision that stopping a snowmobile and turning off its motor is ‘operation,’ because such actions require the exercise of physical control over the speed and direction of the snowmobile.”

Reversed.

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

Attorneys:

For Appellant: Victor C. Harding, Milwaukee

For Respondent: Gregory J. Cook, Anthony P. Hahn, Wausau