Dealing with Common Winter Issues

I just read a great article in The Municipality magazine by Attorney Claire Silverman which discusses the major issues that municipalities face in winter (well, maybe not Miami). It’s available online at the League of Wisconsin Municipality’s website. Attorney Silverman is Legal Council for the League.

Each topic stands on its own and cites the appropriate statutes and case law, so this should serve as a good reference work if you need to deal with one of the following topics:

  • Removal of Snow and Ice from Public Ways
  • Salt Storage Requirements
  • Winter Parking; Snow Emergencies
  • Snowmobile Regulation
  • Utility Disconnections
  • Municipal Holiday Decorations

Proposed Pothole Liability Law Legislation

2011 Senate Bill 125 would bring municipalities and counties some additional protections from liability for highway defects such as potholes. Under current law, local governments have a greater liability than the State for discretionary decisions about highway maintenance and repair – the reality of that is that if you are injured by a pothole on a state highway you have a lessened ability to recover (from the state) than if you are injured on, for example, a county highway (where you could sue the county). The Supreme Court has called for legislation to remedy this inconsistency and SB 125 does just that by ensuring the burden faced by local governments is no greater than that faced by the State.

Municipalities are still responsible for highway repairs, and this bill would not relieve them of ministerial duties or duties to address known and immediate dangers, and they may still be sued in certain negligence actions. This bill holds municipal highways to the same standard as state highways.

Vacating Alleys and Standing to Sue

In an opinion recommended for publication, Smerz v. Delafield Town Board, the appellate court upheld a decision by the circuit court allowing the Delafield Town Board to vacate an alley, pursuant to Wisconsin Statute 66.1003(3). The plaintiffs, James Smerz, Warren Hornik, and Cheryl Hornik, had sought a judgment in circuit court that the Town had no authority to vacate the alley, and that they would be harmed by the vacation. Their main argument was that since a different statute, Chapter 236 (which concerns platting and subdividing), expressly gave counties the power to vacate alleys in platted subdivisions but did not mention towns, that a town could not vacate an alley in a recorded plat. The circuit court denied their claim. First of all, the court held that the statutes were both permissive, and not mutually exclusive. Second, since the plaintiffs’ properties did not abut the portion of the alley that was being vacated, they had no standing to bring a lawsuit against the town. The appeals court upheld the circuit court on both grounds.

Sometimes You Can Fight City Hall!

In Cooper v Village of Egg Harbor , a dispute arose over whether a short road leading to the shore of Green Bay was public or private. The Village had paved the road at some point in the past, and it had been used, rather sporadically according to the facts given in the case, by members of the public. However the road had never been dedicated to the public, and there was no record to show ownership by the Village. One of the curious facts of the case was that apparently noone claimed ownership – not the Village, and not the landowners on either side. There were several legal theories argued in the case, but in the end the Door County Circuit Court had held that theVillage had not presented enough evidence that this was a public road to back up any of its legal theories. The appeals court upheld the Circuit Court ruling. Although a decision has been handed down in the case, from my reading, it appears that the issue of ownership will have to be worked out (you’d have thought someone would have brought that up before this got to the appeals court).

Governmental Immunity Applied to Subcontractor

In a recent case recommended for publication, Bronfeld v. Pember Companies, Inc., the appellate court held a subcontractor immune from a lawsuit filed by Beverly Bronfeld after she was injured when she tripped over a warning barricade placed near a closed crosswalk. She sued Pember Companies, among others, and the trial court granted summary judgment, finding that Pember had governmental immunity as an Agent of the City of River Falls. Pember Companies was a subcontractor installing sidewalks as part of a larger contract with the City of River Falls. River Falls had laid out extensive project, traffic and safety plans, and Pember had complied with the plans. However, Bronfeld argued that Pember was negligent in the placement of the signs, and had not taken adequate precautions to protect the public. Bromfeld appealed, and the appellate court addressed two issues.

First the Bronfelds argued that Wisconsin Statute § 893.83(1), which is an exception to governmental immunity for certain highway defects, precluded Pember from claiming immunity. The court concluded that a misplaced barricade was not a highway defect under the statute. The statute related to the condition of the roadway surface, not temporary barricades.

Then the court reviewed the governmental immunity defense. Wisconsin Statute § 893.80(4) immunizes local governments and their officers, employees, or agents from liability for acts involving the exercise of discretion or judgment. The court first analyzed whether placement of barricades was a discretionary act, and concluded that ample case law had already decided this issue. The placement of signs by a municipality was clearly an act of discretion. Then the court reviewed whether Pember was immune because it was an agent of River Falls, The court analyzed the case based on Lyons v. CAN Insurance Co. 207 Wis. 2d 446 (Ct. App. 1996). In Lyons, the court had developed a three part test for when an agent may be entitled to governmental immunity: (1) whether the governmental authority had approved reasonably precise specifications; (2) whether the contractor’s actions conformed to those specifications; and (3) whether the contractor warned the municipality of any known dangers. The court found that River Falls had the necessary specifications, Pember had conformed to those specifications, and Pember was unaware of any particular danger associated with the placement of the barricades by the closed crosswalk. Thus Pember was entitled to immunity under § 893.80(4).

Claims barred by Governmental Immunity in Road Design Case

In a recent unpublished Court of Appeals case, Glaum v the City of Hayward, the Court upheld a circuit court decision granting governmental immunity under Wis. Stat. 893.80(4) for the alleged faulty construction of a road which caused flooding onto an adjacent property. The Glaums claimed that the City had a duty to design and construct the road such that it could sufficiently handle storm water. The Court, relying in part on Milwaukee Metropolitan Sewerage District v. City of Milwaukee, held that “approval of the design and construction of a public work are generally discretionary acts.” (…even if the system is poorly designed…). This case hinged on the distinction between a discretionary and a ministerial act. Discretionary acts are generally immune, while ministerial acts are generally not. Some actions seem clearly discretionary while others appear clearly ministerial. But as evidenced by the fact that there have been a number of lawsuits hinging on this very distinction, there is quite a grey area between the two. As a general rule, discretionary acts are those acts requiring an exercise of judgment, while ministerial acts are those acts which are certain, imperative, and involve the performance of a specific task which the law imposes – nothing is left for judgment.

Neighborhood Electric Vehicles

A bill working its way through the Senate would give municipalities greater ability to permit neighborhood electric vehicles (“NEV”) on their roads. Currrently, the law (Wis. Stat. 349.26) authorizes municipalities to permit NEVs on local roads unless they are connecting highways or cross a state trunk highway, in which case they must get DOT permission. Under the bill, the municipality may permit NEVs on any road within its municipal limits that has a speed limit under 35 mph. If this bill becomes law, I’ll post an update. NEVs are defined in Wis. Stat. 340.01(36r).

New Improved Car Boot Law Proposed

A new law allowing municipalities greater power to use immobilization devices, often called “car boots” for parking ticket scofflaws has been recommended for passage by committee, and is now available to be scheduled for a full Senate vote. 2009 Senate Bill 297 would permit a municipality to immobilize a car if the owner has three or more outstanding parking tickets which are at least 28 days old. In order to get his car back, the owner would have to pay the outstanding fees, as well as costs associated with the immobilization, and any subsequent towing and impoundment. Municipalities could eventually sell the car in an attempt to recover their costs under certain circumstances. (This assumes the car has any value – and if it did wouldn’t you think the owner would reclaim it?). This law is similar to 2007 Assembly Bill 618 which failed to pass in 2008. I’ll keep this blog updated if the Senate votes on the bill and we get any closer to a law. You can check out the bill and the legislative analysis at:
http://www.legis.state.wi.uw/2009/data/SB-297.pdf

Plain Language trumps in January appellate court decision re highway discontinuance (recommended for publication).

In Dawson v. the Town of Cedarburg,2009AP120, the Dawsons had applied to the Towns of Jackson (Washington County) and Cedarburg (Ozaukee County) to discontinue a road. The two town boards met in a joint session, with five members of the Jackson Town Board in attendance, and three members of the Cedarburg Town Board in attendance. The vote, along town board lines, was 5 to 3 to discontinue the highway as the Dawsons wished. The Town of Cedarburg appealed. In an opinion issued January 6, 2010, in an apparent issue of first impression, the court was faced with the following language in Wis. Stat. 82.21(2): “…the governing bodies of the municipalities, acting together, shall proceed under ss. 82.10 to 82.13.” Cedarburg contended that this meant each town board must approve the discontinuance, rather than a simple majority of both boards. The court focused on the words “acting together,” and based on an analogous but unrelated statute and a Minnesota case that they found helpful, decided that “acting together” is plain on its face and requires a majority of both boards, not separate approval by each board.