Totsky v. Riteway Bus Service, Inc.
233 Wis.2d 371, 2000 WI 29, 607 N.W.2d 637 (2000)
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Rule of Law:
The emergency doctrine can excuse a violation of a safety statute, which ordinarily constitutes negligence per se, if the violation results from a loss of management and control due to an unforeseen emergency not caused by the driver's own negligence, requiring instant action.
Facts:
- On February 10, 1993, just before 7:00 a.m., an accident occurred at the intersection of Morgan Avenue and 80th Street in Milwaukee, where a stop sign controlled northbound traffic on 80th Street, but Morgan Avenue was an arterial roadway without stop signs.
- Sharon Williams, a Riteway school bus driver, began her route at 6:00 a.m., having checked her bus and noting damp roads with some ice, and had experienced two minimal skids earlier where she could see the ice.
- Jeffrey Totsky was driving east on Morgan Avenue, also noticing wet roads but encountering no slippery conditions or skids before the accident.
- As Williams approached the stop sign on 80th Street, she began to apply her brakes approximately 100 feet away, traveling at an estimated 12-14 mph (or 10-15 mph). The road appeared wet, not icy, to her.
- The bus began to skid on an unobservable patch of ice, and despite Williams pumping the brakes and attempting to steer into the skid, she was unable to stop the bus.
- The bus skidded completely through the parking lane and into the intersection, where it collided with Totsky's vehicle, which Totsky had attempted to avoid by accelerating.
- The bus struck Totsky's vehicle on the right rear corner, causing Totsky's vehicle to spin clockwise and hit a signpost broadside, resulting in Totsky being thrown into the passenger seat and sustaining back injuries requiring extensive medical treatment and eight months of missed work.
- Williams and the two or three children on the bus were not injured in the collision.
Procedural Posture:
- G. Jeffrey Totsky and Kristine Totsky (Petitioners) sued Riteway Bus Service Co. and its driver, Sharon Y. Williams, in Milwaukee County Circuit Court.
- Before trial, Maxicare Health Insurance Corporation and the City of Milwaukee (subrogated parties) stipulated to waive their right to participate at trial and agreed to be bound by the judgment; State Farm Mutual Automobile Insurance did not enter such a stipulation.
- The case was tried to a jury in Milwaukee County Circuit Court in November 1996.
- At the close of evidence, the Totskys moved for a directed verdict on Williams' negligence, which the court took under advisement.
- The jury returned a special verdict finding neither Sharon Williams nor G. Jeffrey Totsky negligent.
- The Totskys renewed their motion for a directed verdict and, in the alternative, moved for a new trial in the interest of justice.
- The Milwaukee County Circuit Court, Honorable Michael W. Skwierawski presiding, granted both motions: entering a judgment in favor of the Totskys on their renewed motion for directed verdict and conditionally granting a new trial.
- The court of appeals reversed both of the circuit court's rulings, holding that the emergency doctrine could apply to a negligence per se action if a safety statute violation was caused by a loss of management and control, and that credible evidence supported its application.
- The Totskys petitioned the Wisconsin Supreme Court for review of the court of appeals' decision. The three subrogated parties did not join the petition or file their own; Respondents (Riteway) filed a motion to dismiss the subrogees, which the subrogees only responded to after being warned of summary dismissal.
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Issue:
Does the emergency doctrine apply to excuse a violation of a safety statute, specifically Wis. Stat. § 346.46(1) requiring a stop at a stop sign, which typically constitutes negligence per se, when the violation arises from a driver's loss of management and control due to an unforeseen hazard like an unobservable patch of ice? Additionally, must subrogated parties file separate petitions for review to preserve their claims on appeal?
Opinions:
Majority - N. Patrick Crooks, J.
Yes, the emergency doctrine applies to a violation of Wis. Stat. § 346.46(1) under the facts of this case because a stop sign violation involves an issue of management and control. The court affirmed the court of appeals' decision, clarifying that the emergency doctrine can excuse a violation of a safety statute, even if it results in negligence per se, as long as the violation stems from a loss of management and control not caused by the driver's own negligence, and the other emergency doctrine requirements are met. The court relied on La Vallie v. General Ins. Co. of Am., which applied the emergency doctrine to a safety statute violation where management and control was at issue. It also found support in the Restatement (Second) of Torts § 288A, which lists emergency as an excused violation of a legislative enactment, and other tort authorities who temper the 'draconian' nature of negligence per se with excuses like emergency or lack of control. The court interpreted the mandatory language of Wis. Stat. § 346.46, noting it already contains exceptions and is concerned with management and control duties (stopping and yielding). The court concluded that credible evidence supported the jury's application of the emergency doctrine because Williams was not negligent in creating the emergency (reasonable speed, unobservable ice) and the time to react was short enough to be a jury question. Therefore, the circuit court erred in directing the verdict and conditionally granting a new trial. Regarding subrogation, the court held that subrogees must file separate petitions for review to preserve their claims unless they stipulated to waive participation at trial and be bound by the judgment. Thus, Maxicare and the City of Milwaukee preserved their claims due to stipulation, but State Farm's claim was dismissed because it did not.
Dissenting - Ann Walsh Bradley, J.
No, the emergency doctrine should not apply to excuse a violation of Wis. Stat. § 346.46(1) because the plain language of the stop sign statute imposes an absolute duty to stop, with no expressed exceptions for emergency situations. Justice Bradley argued that the majority improperly analogized the stop sign statute to Wis. Stat. § 346.05(1) (roadway position), which explicitly lists exceptions including those for emergency conditions, whereas § 346.46(1) only lists narrow exceptions for traffic officers or signals, which do not address emergencies. She asserted that the legislative history also shows no intent to provide an emergency excuse for stop sign violations and that the court has previously interpreted this statute as imposing an absolute duty, citing Sailing v. Wallestad and Edwards v. Kohn (crosswalk statute). Furthermore, the dissent argued that the majority erred in reversing the circuit court's conditional grant of a new trial, which should be afforded greater deference, especially since the circuit court had an alternative, reasonable ground that the bus driver created her own emergency by driving too fast given prior knowledge of icy conditions.
Concurring - William A. Bablitch, J.
Yes, I concur with the majority's conclusion that the emergency doctrine applies to excuse the bus driver's negligence in this case, but I write separately to argue that the emergency doctrine itself should be abolished in Wisconsin tort law for both common law negligence and negligence per se. Justice Bablitch argued that the emergency doctrine 'obfuscates clear thinking' and adds little to the fundamental 'reasonable person under the circumstances' standard, which already accounts for sudden emergencies. He cited Professor Richard Campbell and other courts/commentators who found the doctrine confusing, unnecessary, and prone to misapplication. For negligence per se, he proposed that if a statutory violation is proven, the burden of production should shift to the party against whom the action lies to establish that his or her conduct was still that of an ordinarily prudent person under the same circumstances. If met, it becomes a jury question of common law negligence; if not, the statute sets the standard. This approach, he argued, would eliminate the intellectual 'contortions' required by the emergency doctrine while still allowing all circumstances to be considered.
Analysis:
This case significantly clarifies the applicability of the emergency doctrine in Wisconsin, particularly in the context of negligence per se arising from safety statute violations. By allowing the emergency doctrine to excuse a stop sign violation, the court reinforced a flexible approach to negligence per se, preventing strict liability where a driver acts reasonably in an unforeseen emergency. The ruling emphasizes that the management and control aspect of a duty is key for the doctrine's application, even if other duties (like lookout or speed) are also implicated. The subrogation holding establishes a clear procedural requirement for subrogees to protect their interests on appeal, differentiating between those who stipulate to be bound by judgment and those who must file separate petitions.
