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  • January 13, 2012

    Pothole liability: Proposed bill could create 'discretionary' immunity for highway defects

    Jan. 18, 2012 – Municipalities and municipal groups are pushing a bill that would eliminate municipal liability for "discretionary" decisions regarding roadway and other construction and maintenance. In this article, municipal and personal injury attorneys debate the impact of the bill.

    Joe Forward

    Pothole liability: Proposed bill could create “discretionary” immunity for highway defects

    Jan. 18, 2012 – Under a proposed bill that has passed the Wisconsin Senate, so-called “pothole liability” may soon change in Wisconsin, meaning counties, cities, towns, and villages would be largely immune from liability for damages resulting from highway defects.

    Currently, Wis. Stat. section 893.83(1) allows any person to recover up to $50,000 for damages that result “by reason of the insufficiency or want of repairs” of any highway “that any town, city, or village is bound to keep in repair.”1 That $50,000 maximum liability extends to counties that are required to repair highways, by agreement or control.

    The term “highway” means “all public ways and thoroughfares,” including roads, bridges, streets, sidewalks, driveway aprons, shoulders of a highway, and public parking lots.2 A highway is defective when it is not constructed or maintained so as to be reasonably safe.3

    SB 125, which passed the Senate in November 2011 by a 21-11 vote, allows municipalities to assert an immunity defense for “discretionary” highway maintenance decisions, according to Madison attorney Curtis Witynski of the League of Wisconsin Municipalities.

    The bill also repeals section 893.83(2), which makes municipalities secondarily liable where a highway defect, or a defect on “other public grounds,” contributes to damages caused by a third party’s wrongdoing or negligence and the third party is unable to satisfy a judgment.

    The bill draws support from municipalities and municipal associations, in part to create consistency between state and municipal liability and immunity laws.

    The state is immune from liability for “discretionary” decision making, even for highway defects on state-controlled highways, according to municipal attorney Andrew Phillips, of Mequon.

    “The liability and immunity laws should be consistent. Whether someone is driving on a state highway or a municipal highway should not change the analysis,” said Phillips, who represents the Wisconsin Counties Association (WCA) and several counties.

    But the Wisconsin Association of Justice (WAJ) warns that changing a law that has been in place for 163 years could put drivers at increased risk with no recourse if damage or injury occurs.

    “There are really good reasons why this law has been in place this long,” said Ann Jacobs, a WAJ representative and a personal injury attorney based in Milwaukee. “The only ones that have the ability to safeguard citizens and highway users are the municipalities who own these roads.”

    Exception to discretionary immunity

    Section 893.83 is a statutory exception to the general immunity rule that municipalities and their agents are immune from liability for discretionary acts – “acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions” – under section 893.80(4).

    The exception was created in 1849. However, the Wisconsin Supreme Court in 1969 and 1972 asked the legislature to repeal the exception as “unnecessary” in light of 893.80(4), enacted in 1963 to protect the “discretionary” decision making of municipalities.4

    However, the Wisconsin Legislature never repealed the exception. That led to the Wisconsin Supreme Court’s 1998 decision in Morris v. Juneau County, 219 Wis.2d 543, 579 N.W.2d 690 (1998). In that case, a driver and his wife alleged the county was negligent in failing to level a drop-off that existed between the blacktop roadway and the gravel shoulder.

    Juneau County argued that section 893.80(4)’s immunity provision for discretionary acts trumps the “highway repairs exception” in 893.83. However, the supreme court disagreed, noting that previous legislatures had not repealed the exception despite calls to do so.

    “Because the legislature clearly had several opportunities to respond to this court’s suggestions but nonetheless acquiesced in our decisions or refused to amend or repeal [§893.83], we conclude that the legislature intended to keep in force the exception to governmental immunity provided by [§893.83],” wrote former Justice William Bablitch.

    Phillips, who testified on behalf of the WCA at a Senate committee hearing last October, says the failure to repeal the “highway defect” exception was a legislative oversight, one that municipalities now want to rectify through SB 125.

    But Jacobs, who testified on behalf of the WAJ at the Senate committee hearing, says previous legislatures recognized the importance of a municipality’s obligation to maintain reasonably safe roads, and that obligation should continue given the public’s reliance on roadways.

    The arguments

    According to former Legislative Associate Doug Parrott of the Wisconsin Counties Association, 50 of the 74 Wisconsin counties reporting data to the association shelled out roughly $1 million in expenses and claims the last 10 years because of highway defects.

    “That’s not a lot of money in the grand scheme of things, but it’s enough to raise premiums,” Parrott told lawmakers. “In these lean times, every penny counts.”

    But Jacobs says the low number of claims indicate a largely “non-existent problem, except for the few people who are injured from a failure to make roads reasonably safe.” She says the law works to safeguard citizens who have no way of knowing, for example, “that a road has washed away around a curve in some other county until their car hits it and rolls over.”

    Jacobs says the law is not overly burdensome on municipalities because a plaintiff must still prove a municipality, through its officers and employees, had actual or constructive notice of a highway defect, meaning municipalities are not strictly liable for defective conditions.

    “It’s simply untrue that if a road buckles five minutes before someone drives over it, the municipality is automatically liable,” said Jacobs, who points to Wis. JI-Civil 8035 on this point and notes that location and topography can factor into the “notice” analysis.

    And, Jacobs says it’s absolutely true that SB 125 means a municipality’s “discretionary” decision to refrain from repairing roads or bridges that may need repair to remain reasonably safe would leave citizens without recourse to sue based on damages that result from that decision.

    However, Phillips says there’s an element of strict liability under the current highway defect exception, in the sense that there is no need to prove there was any action or inaction on the part of the municipality that caused the defect in order to have liability.

    “Under current law, a duty is assumed and a breach of that duty is assumed if the municipality has actual or constructive notice of the defect,” Phillips said. “It’s awfully difficult to ask a county or municipality to be an absolute insurer of the roadway system.”

    Phillips says if the law passes, the plaintiff would be required to show that the municipality had a “ministerial duty” to repair the highway, did not do so and the breach of the duty caused the harm. Municipalities have ministerial duties to construct and maintain roads under guidelines established by the Wisconsin Department of Transportation, Phillips noted.

    A “ministerial duty,” is defined by the courts as “the performance of a specific task when the law imposes, prescribes and defines the time, mode and occasion for its performance with such certainty that nothing remains for judgment or discretion.”5

    “If a county were to disregard those standards then that’s a basis to hold the county liable under a negligence theory,” Phillips said. In addition, plaintiffs can use a “known danger” exception to trump “discretionary” immunity where a municipality knows a certain dangerous condition could cause harm and does nothing about it, according to Phillips.

    But Jacobs says the known danger and ministerial exceptions are limited.

    “Whether something is a known and present danger or whether something is a ministerial duty is extremely fact specific. Those exceptions aren’t enough in the context of road safety,” said Jacobs, who fears that changing the law could make road safety a budgetary “line item.”

    “If this law passes, we really have to encourage our citizens to not give their municipalities a pass on the condition of their roads,” Jacobs said. “We have to encourage communities to properly maintain highways even if they are not obligated to do so.”

    But Phillips doesn’t have the same fear. “I don’t think this will impact the maintenance of roads in any way. I have never once in my 17 years of doing this heard any county official assert lawsuits as a reason to conduct road maintenance activities.”

    By Joe Forward, Legal Writer, State Bar of Wisconsin


    1 “Want of repair” has been defined as “anything in the state or condition of the highway which renders it unsafe or inconvenient for ordinary travel.” Black’s Law Dictionary, Fifth Ed.

    2 See Wis. Stat §340.01(22); Ellerman v. City of Manitowoc, 2003 WI App 216, 267 Wis.2d 480, 671 N.W.2d 366.

    3 Wis. JI-Civil 8035.

    4 Morris v. Juneau County, 219 Wis.2d 543, 579 N.W.2d 690 (1998).

    5 Umansky v. ABC Ins. Co., 319 Wis.2d 622, 632, 769 N.W.2d 1, 6 (2009).

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