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Lawyers see bumpy road ahead for pothole legislation

By: Adam Wise, [email protected]//September 5, 2011//

Lawyers see bumpy road ahead for pothole legislation

By: Adam Wise, [email protected]//September 5, 2011//

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Traffic passes a pothole at the corner of North Broadway and East Michigan streets in Milwaukee. Legislators are pushing a bill that would repeal a state law that says local governments are liable for injuries and damages sustained from highway defects, such as potholes. (Staff photo by Kevin Harnack)

By Adam Wise

Trial lawyers and municipal lobbyists are going nose-to-nose over potholes.

The fight, which is familiar territory for both sides, centers on Assembly Bill 180, a proposal that would repeal a state law that places liability on local governments for injuries and damages sustained from highway defects, such as potholes.

Representatives from the Wisconsin Association for Justice argue the bill would strip Wisconsin motorists of their right to sue.

“If the bill passes, then a municipality will escape liability if they can show it simply wasn’t an administrative obligation to maintain,” said Mike End, association president. “I view this as an unnecessary infringement on the basic right for people to recover compensation. I don’t understand the rationale. I don’t get it.”

The rationale for the bill, said Douglas Parrott, legislative associate for the Wisconsin Counties Association, is to put local governments on par with state government.

According to state law, people can sue local governments for as much as $50,000 in damages from highway defects. The plaintiffs do not have to show negligence on the part of the local government.

But people can sue the state for as much as $250,000 in damages from state highway defects. But those plaintiffs must show negligence on the part of state government.

“Let’s say we’re in the middle of July, you have a 100-degree heat wave and a piece of pavement blows out on the highway,” he said, “and five minutes later you drive your car through. The county can be held liable for damages even though the county didn’t know it existed.”

This isn’t the first go-round for the bill, and gathering support from both sides of the aisle hasn’t been the problem, said state Rep. Andre Jacque, R-Bellevue.

Jacque, who co-wrote bill, said similar legislation in 2005 passed on voice votes, but former Gov. Jim Doyle vetoed the bill. Jacque blamed the trial lawyers for swaying Doyle.

“From the trial lawyers’ concerns, it’s one more pocket of money that they are unable to secure,” he said. “The trial lawyers have said this bill would be used by local government officials to shirk their responsibilities, and I think that’s insulting.”

In an August column for his association, End wrote that the bill made it easier for local governments to shirk their responsibilities of maintaining the roads.

End said his column might’ve been worded too strongly.

“I don’t want to imply that any governmental bodies are doing anything wrong, but the incentive is less now to put priority on maintaining,” he said. “I think there’s some social value to having the potential liability out there to encourage municipalities to maintain their highways.”

The bill would not change how local governments maintain local highways, said Dan Lowndes, Dane County risk manager.

“With our highway department, if we know about a pothole, we send a crew out to fix it,” he said. “If somebody hits a pothole we don’t know about, we believe we have a valid defense: We aren’t the insurer of the street.”

In the three years Lowndes has held his position, he said, no lawyers have brought cases against the county involving injuries received from highway defects.

“Sometimes people file complaints, but every time we look into it, we followed standard operating procedures,” he said. “As soon as we found out about the pothole, we fixed it.”

Since January 2000, the Wisconsin County Mutual Insurance Corp., which insures 55 of the 72 Wisconsin counties, has paid out $955,211 in claims related to highway defects, according to data provided by the Wisconsin Counties Association.

End said the numbers proved there was no problem to be fixed with the bill.

“How many $50,000 claims can be in a year if, on average, they only pay out $100,000 a year?” he said. “This isn’t a bonanza for trial lawyers. The reason trial lawyers are objecting to this is it’s depriving citizens of Wisconsin an important right: the right to recover fair compensation.”

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